By: Scott Hobson, Legislative Analyst
On Tuesday, May 1st, Assemblywoman Sandra Galef (D, Ossining) introduced legislation which would balance disclosure requirements for expert witnesses in lawsuits. Senator Martin Golden (R, Brooklyn) introduced the legislation in the Senate on April 13th.
The legislation would require plaintiffs to disclose their expert witnesses before a trial date can be set for the lawsuit. Defendants would be required to disclose their experts no later than 60 days after the trial date is set. Currently, New York’s civil law requires all parties in a lawsuit to disclose their experts, but incredibly, fails to set a time frame for this disclosure. This has given rise to the practice of “trial by ambush”, where plaintiffs’ attorneys wait until the eve of trial to disclose their expert witnesses, preventing defendants from preparing an adequate defense. The New York State Bar Association Committee on the Commercial Division noted that, “Trial by ambush…does nothing to further to further the pursuit of fair and efficient resolution.”
The new legislation would improve fairness, reduce frivolous lawsuits, and lower costs to the court system. Early disclosure of witnesses allows both parties to engage in meaningful settlement negotiations long before the case goes to court, rather than allowing one side to game the system to their advantage. Because all parties understand the relative merits of the case against them, frivolous lawsuits are far less likely to be settled. Tom Stebbins, Executive Director of the Lawsuit Reform Alliance of New York noted, “Nothing prevents frivolous lawsuits like having to show you have a case.”
Legal scholars have long called for a timeframe for disclosure of expert witnesses. David Siegal, the pre-eminent New York tort law scholar, noted “The statute cries out for some type of amendment to impose some kind of time period on the disclosure…” In fact, the basic elements of the legislation are already in place in the Third Judicial District of the New York State Supreme Court in the form of a judicial rule. The proposed bill would simply apply this rule statewide.
LRANY Applauds Senator Golden and Assemblywoman Galef for their leadership and commitment to a fairer, more balanced civil justice system.