Establishing your Expert
AZ Rule 26.1
Arizona Rules of Civil Procedures 26.1 sets the court’s standard for attorneys in professional standard of care/liability cases. The first step is deciding whether you need an expert in the civil claim against a licensed professional in AZ. The decision to use an expert or not has to be in a written statement filed along with the claim filing.
And if the choice is to use an expert, then a preliminary expert opinion, in compliance with Rule 26.1, must be presented with the initial disclosures. 26.1 sets the requirements for the expert’s preliminary opinion. These reports are needed in civil suits against professional insurance agents as well as many other types of licensed professionals.
Each expert is required to file a preliminary opinion. And that opinion should contain at least the following information requirements in the report:
- Name, address, and qualifications of the Expert. Why is the expert qualified to comment on this standard of care or professional liability breach? The expert should explain how her background, training, etc. qualify her to express professional opinions on this case.
- The Factual Basis for each allegation of the claim. What facts are the expert using to form his opinions? What is the substance of the facts and opinions on which he is to testify? The report should contain a summary of the grounds for each of the expert’s opinions.
- Standard of Care violations. How did the licensed professional violate the standard of care? Which actions of the professional (acts, errors, or omissions) created the standard of care violations?
- Justification of damages. What about the professional’s acts, errors, or omissions caused or contributed to the damages or other relief sought by the claimant?
- Compensation Agreement. It should include a statement of the expert’s proposed compensation for work and testimony.
- Testimonies. And it should contain a list of all cases where the expert has testified at a hearing or trial in the last four years.
Even if the plaintiff does not believe an expert is required, the defendant (licensed professional) may make a motion to the court to order the plaintiff to obtain a preliminary opinion of an expert.
For the most part, communication between the expert and attorney are protected by the Trial-Preparation Protection for Draft Reports or Disclosures. There are exceptions, and the party will have to share communications regarding:
- Compensation for the expert’s work
- Facts or data provided by the attorney which the expert considered in forming her opinions
- Any assumptions the attorney provided and upon which the expert relied in forming his opinion