Federal Rules of Civil Procedure: What Expert Witnesses Need to Know

Originally adopted in 1938, the Federal Rules of Civil Procedure have been amended many times, most recently in 2020. The FRCP also forms the basis for a number of state court rules of civil procedure.

Today, the FRCP plays a key role in determining how federal civil trials proceed. The rules impact the filing of an initial complaint through the participation of expert witnesses and evidence gathering. The FRCP also has a hand in the events of a trial or settlement and the process of appeal.

Expert witnesses can benefit from a familiarity with the Federal Rules of Civil Procedure, particularly Rule 26 which addresses discovery and expert witness requirements.

An Overview of the Federal Rules of Civil Procedure

The Federal Rules of Civil Procedure are categorized into 11 titles. There is also an appendix and supplementary rules for maritime claims and asset forfeiture actions. The titles and associated rules generally follow the timeline of an average civil case. However, each case may have its own unique considerations.

Title I

Title I includes information about the scope and purpose of the Federal Rules of Civil Procedure. It also specifies, in Rule 2, that civil action is the one form of action recognized.

Title II

Title II deals with the process of commencing a civil action in federal court. These rules cover the service of process and filing pleadings and other papers. They also cover how to make constitutional challenges to a statute, privacy protections, and how to calculate deadlines.

Title III

Title III rules delve into the specifics of pleadings and motions. Rule 8 covers the general rules of pleading, while Rule 9 addresses pleading of special matters. This title also addresses defenses and objections, counterclaims and cross-claims, third-party claims, amended and supplemental pleadings, and pretrial conferences.

Title IV

Title IV focuses on parties to a civil action. This includes how a lawsuit could have additional parties as the claim progresses and the parties gather additional information.

Title V

Title V focuses on disclosures and discovery. The discovery phase is usually when an expert witness is first called upon to participate in the civil trial process. Thus, the rules in Title V can be particularly valuable for an expert witness to review. This title also includes rules for depositions. An attorney may ask an expert witness to give a deposition as part of their participation in a civil process.

Title VI

Title VI provides the rules governing federal civil trials. Experts who are asked to participate in a trial may find it useful to review the rules in this title. It may be helpful for experts to review Rule 43 on taking testimony.

Title VII

Title VII addresses types of judgments in civil trials. In Rule 59, it also addresses situations calling for a new trial. Subsequent rules cover situations in which a harmless error may occur. The rules also cover situations in which a judge is unable to proceed with a trial or judgment. The closely-related Title VIII covers provisional and final remedies. The court often issues remedies along with the process of issuing a judgment.

Title IX – XI

In Title IX, the Federal Rules of Civil Procedure discuss special proceedings. Titles X and XI deal with the business kept by the district courts and clerks and with general provisions, respectively. An appendix of forms and supplemental rules for admiralty or maritime claims and asset forfeiture actions followed the two titles.