A lawyer for a plaintiff in a consumer law case was confident about victory. He deposed the expert witness for the defense early in the case, and concluded that he did not need to hire his own expert. He felt that he could save his client a lot of money.
Later, as the case proceeded into arbitration, the defense expert testified. While the expert's testimony was still in many ways inadequate, the plaintiff's lawyer decided that he would benefit from having his own expert explain the case to the court and explain why the defense expert's opinion was not supported by the evidence.
Unfortunately for the lawyer and his client, the arbitrator held that the plaintiff's request for an expert witness came too late in the process. Even as a rebuttal witness, the arbitrator found that any expert should have been declared to the defense early in the litigation, as described in the court's scheduling order.
Although the plaintiff's lawyer was able to use the expert as a consultant outside of the arbitration proceeding, the expert was unable to testify at the hearing.
With a bit of planning, and without incurring much expense, the plaintiff's lawyer could have avoided the problem. Here are the steps that the lawyer might have taken:
- Locate and name an expert witness during the early stages of the litigation, consistent with the judge's order for the exchange of witness lists. Simply naming an expert does not require that you hire the expert to prepare a report or to testify.
- If you are not certain that you will need an expert, even though you have named one or more experts, don't use their services unless and until those services are needed.
- As litigation proceeds, consider using your experts as non-testifying experts. Your experts can give you advice on strategy and assist with your preparation to question or depose the other party's witnesses and experts, without either preparing reports or testifying in the case.
- If it appears that you will need expert witness testimony, notify your expert in advance so that the expert has time to prepare any reports for provision to the other party consistent with discovery and the trial court's scheduling order, and so that the expert will be able to schedule time to participate in depositions, hearings, or the trial. Make sure you discuss timing with your expert, so that your expert is not pressured or rushed in preparing a report or in preparing to testify.
When you consult experts, ask if the expert will agree to be named as an expert witness for you without receiving a fee. Some experts may want a retainer to be named at all, or may want a fee in exchange for that commitment. Others may be willing to be named as experts without a fee, as long as they have no conflict of interest and have sufficient time in their schedule to testify if needed.
Why would an expert agree to be your expert witness without an up front fee? It will often be a mutually beneficial arrangement. Although it's not a guarantee that the expert will later earn a fee on that specific case, it is likely that if expert support or testimony is later required within the expert's field of expertise, that the named expert's services will be used. The lawyer gets an opportunity to potentially save the client some money, avoids being accused of making a late declaration of the expert, and builds a relationship with the expert that may carry over into future cases.
Some experts may be concerned that by agreeing to be named without receiving a fee, they will not be able to work for the other party if that party is willing to retain their services. However, it is unusual for a potential expert to be approached by more than one party to a case and, if it happens, a conflict of interest has likely already arisen from the first consultation that will prevent the expert from accepting a different party as a client.
A lawyer who identifies an expert witness who has not been retained to testify or to prepare a report for the litigation should take care not to mislead the other party or the court when describing the expert on the witness list. A lawyer should take care not to miss any deadlines or requirements for submitting a later notice or amended witness list to inform the other party that an expert, previously identified as non-testifying, will in fact testify or prepare a report for use in later proceedings.
Of course, no lawyer should name an expert witness who has not agreed to be named as an expert. However, it is rare for a lawyer to make that mistake, and that's not something the expert is actually positioned to prevent.