Expertise Denied
By Richard O. Neville, MBA
Neville Associates, Inc.
Submitted May, 1999
Earlier this year a dealer engaged me as a rebuttal expert in an arbitration case brought by a consumer. After I had spent just over two days working on the case, we learned that the arbitrator had denied as untimely the request of the defendant dealer to have me testify at the arbitration hearing. While I was still able to provide the dealer with consulting assistance, the dealer was denied the ability to provide live rebuttal testimony.
The plaintiff's attorney had engaged an expert early on; my client deposed him. His deposition testimony was so weak that the dealer's attorneys didn't think they even needed an expert (and I agreed when I read his deposition). But when he testified at the first arbitration hearing, they decided they'd better have an expert after all to rebut his unsupported (but potentially harmful) assertions. That's when they called me.
How could this situation have been avoided?
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Seek out, engage, and name an expert at the beginning of the proceeding if there is any question that you might eventually need one. Naming an expert doesn't require you to present a report or testimony from that expert.
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If you're not sure about the type of expert you need, name more than one. All can testify, some can testify, or none can testify, depending on how the case goes.
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To avoid denials as "untimely," consider the deadlines for naming experts imposed by the venue in which the case is being tried. (Without having read this newsletter, the lawyer who originally contacted me too late contacted me early for a second case and asked if my name could be listed as a possible expert.)
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Hold your expert(s) "in reserve" until you're sure of the need for and nature of expert advice or testimony. It normally won't cost you anything (see below).
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When and if needed, have your expert(s) assist in preparing to depose and cross-examine the other side's expert, if they have one.
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Alert the expert that you will need his or her services in sufficient time to avoid having to rush. A rushed expert analysis may be flawed, or the expert may not have time to look at all relevant evidence. An opposing attorney can have a field day questioning a "rush job" of analysis.
This brings up the question of "locking in" an expert without paying the expert a retainer. Every so often, an attorney asks me whether my name may be used as a "possible expert." If there is no conflict of interest, I may allow my name to be used without fee.[1]
Why? First, I've never been "preempted" as an expert-I've never encountered a situation in which a litigant wanted to name me just to prevent the other side from doing so. Second, allowing a litigant to name me without fee is just good business.
The litigant that names me will likely use my services if any expert advice or testimony ultimately is needed. Even if they don't need my services in this case, they may need them in a future case. To charge a fee simply to be listed as a potential expert strikes me as inappropriate. After all, I don't charge any separate fee to be listed in a case where I do present testimony. (Some other experts, however, disagree with me on this, feeling that the very naming of an expert may prompt settlement, and that the expert should be compensated for this passive role.)
Naming an expert without the expert's permission is another matter entirely. This has never happened to me, but if someone did name me without permission I can see no reason to get overly excited about it, unless the naming prevented me from being retained by someone else, in which case I would protest. Also, I can always refuse the assignment if and when it's offered. I do think, as a matter of courtesy and good practice, that the expert should be asked before being named.
[1] However, representing that an expert has either been retained and/or formed an opinion when the expert has not can lead to sanctions. See a 1999 decision by the Michigan Court of Appeals, available online at http://www.icle.org/ michlaw/oview.cfm? caseid=19791621
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