Articles Posted in civil action

Any attorney who represents clients in cases that require experts will more than likely come across discovery issues involving those experts. Who is considered an expert and whether or not his or her identity must be disclosed? Specifically, what about consulting experts that will not be a witness at trial, must his or her identity be disclosed to the other parties? In cases involving product liability, this is especially common because of the oftentimes-complex nature of the device at issue. So, what about the discovery of the identification of non-witness consulting experts “attending” the examination of the subject defective product? This article seeks to address circumstances whereby the confidential nature of consulting experts might be removed.

IMG_0791-300x200For instance, in a product liability claim where expert inspections of the product will take place, do the inspections have to be jointly conducted? Can one party insist upon taking possession of the product and conduct an inspection outside the presence of other parties? If one party and the experts take possession of the product, does that party have to disclose the identity of the expert(s) who will be involved in the inspection and handling of the product, and what will they do at the inspection?

These discover issues are governed by Rule 26 of the Alabama Rules of Civil Procedure. However, it is arguable that the specific section of Rule 26 that applies is not at all clear. The party opposed to disclosing the identity of and the work of a consulting expert may argue that:

IMG_0821-300x200Most people know that a lawsuit begins with the filing of a complaint followed, in most cases, immediately by the filing of an answer. Universally referred to as “pleadings,” these legal documents serve as the parties’ first formal written statements setting out either the claims against or defense to another party’s claims in a civil action. What is not universal, however, is the requirements for parties and lawyers when bringing these actions. Depending on the court in which they are filed, claims being asserted, and available defenses, the pleading standard can vary tremendously. For example, for litigants bringing cases in United States Federal Districts Courts, the pleading standard requires that the complaint must set forth at least “enough facts to state a claim for relief that is plausible on its face.Ashcroft v Iqbal, 556 U.S. 662 (2009). For litigants in Alabama State Courts, however, the pleading requirements are materially broader and far less scrutinized when compared to the federal standard. While Alabama’s liberal pleading standard simplifies the process for bringing actions, it can potentially create major problems on the back-end of a case for lawyers with their clients.

Often referred to as a “notice” or “no-set-of-facts” pleading standard, complaints in Alabama are merely required to include “a short and plain statement of the claim showing the pleader is entitled to relief.” Ala. R. Civ. P. 8 (a). Over time, this culture of pleading the bare minimum has, in many cases, lead to minimal review and response from the other party. Despite routine compliance with the minimal pleading standard, such a lackadaisical approach often results in the neglect of important requirements set out in other rules of civil procedure.

The standard and requirements for civil pleadings in Alabama are, in large part, governed by Alabama Rules of Civil Procedure Rules 8 and 12. Pursuant to Rule 12(a), once served with a summons and complaint, a defendant  has 30 days to file a responsive pleading. Under Rule 8, a party’s failure to respond to or deny any averment raised in the Complaint, other than those of damages, amounts to an admission of those claims. Given that the vast majority of answers are timely and amount to a blanket denial to everything raised in the complaint, these two requirements are largely inconsequential. Often overlooked by practitioners, however, are the requirements for raising certain defenses and, more importantly, the consequences for failing to do so.