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  1. #1
    Join Date
    Mar 2010

    Default Expert Witness Liability and Indemnification

    My question involves expert witness practice in the state of: New York.

    Hi, I have 29 years of experience in my industry, have recently retired and have been asked to serve as an expert witness (in the area of business management and strategy) in a MAJOR bankruptcy proceedings.

    Since this is my first experience and given I am risk adverse and do not wish to expose my retirement funds to any liability, I am seeking your guidance around what sort of liability exposures there are for me as an expert witness? I would be working for an Expert firm on a contract basis (not as an employee), who is in turn is working for the real client.

    If there is liability exposure, what sort of measures should I take to protect myself? Indemnification from both the Expert Firm AND client? Do I need to be concerned about potential suits from the opposing party or potentially just the Expert Firm and client if any? Appreciate any practical help and guidance you can give.


  2. #2
    Join Date
    Mar 2009
    Key West, FL

    Default Re: Expert Witness Liability and Indemnification

    Simply put, NOTHING said in court is actionable. It is all totally privileged.
    Nobody can be sued for testimony in a court of law.

    Why do you think there is NO private cause of action for perjury?

    Could you imagine the mess the courts would be in if people who lost civil cases could sue witnesses on the other side? No case would ever be totally done. It would be a totally impossible situation.

    The only thing anyone could face and that is as a plaintiff or complaining witness is abuse of process or malicious prosecution. But neither would apply to you as a witness.

    You have no liability as a matter of law. The party on the other side is protected by their attorney and cross examination and their own expert witnesses. If they do a bad job of it, the plaintiff doesn't get another bite at the apple, other than the right to appeal.

    If the client doesn't like your testimony, they won't use it. Your testimony will not come as a surprise. You might even have to sit for a deposition by the other side. Actually,
    in your field, I would not be surprised if you had to do mock trials with focus groups/mock juries before the actual trial. When setting your rates, take all that into account. It is much more than studying the evidence and testifying at the trial.

    There are a lot of good books and articles out there in the legal community on expert witness practice, which you should probably research.

  3. #3
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Expert Witness Liability and Indemnification

    Expert witnesses are normally quite safe from liability - they're normally immune from a claim by the adverse party, and it's difficult and unusual for a number of reasons for the party that retained the expert to have a viable claim. (For a general idea of the legal issues involved, including the immunities you would enjoy, see this article, keeping in mind that laws vary by state.)

    It does make sense to talk to your insurance agent about carrying some business liability insurance, if available at a reasonable cost.

    Your biggest exposure, actually, is the risk of not being paid - make sure you get an appropriate retainer and that you have contractual provisions for additional retainers for when the initial retainer runs out or if the case goes to trial and your client intends to call you as a witness.

  4. #4
    Join Date
    Feb 2010
    CT & IL

    Default Re: Expert Witness Liability and Indemnification

    anyone who testifies in court are generally immune from issues, unless they lie under oath ...

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