How to Make Sure Your Expert Witness Gets Approved By the Court

 

When many attorneys seek an expert for their case, they often times forget to consider many important factors in ultimately leading to the expert being retained and approved by the court. In addition to obviously being qualified to give expert testimony by the court, there also many rules in place which regulate the timing and procedure which should be used. Below we have outlined some helpful tips on making sure the expert you want for your case is accepted by the court.

1) 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.

2) To avoid a preemptory challenge by the other side, make sure that there are no conflicts of interest with your expert.

3) 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.

4) To avoid denials as “untimely,” consider the deadlines for naming experts imposed by the venue in which the case is being tried.

5) 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. This brings up the question of “locking in” an expert without paying the expert a retainer. Often times an attorney may ask an expert to serve as a “possible expert.” If there is no conflict of interest, an expert may be inclined to allow their name to be used without fee. However, there are times when an expert can be preempted in which a litigant wanted to name a well established expert just to prevent the other side from doing so.

6) When and if needed, have your expert assist in preparing to depose and cross-examine the other side’s expert, if they have one.

7) Let the expert know that you will need his or her services in sufficient time to avoid having to prepare for the case at the last minute. An expert analysis done without necessary time 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.

Comments

One Response to “How to Make Sure Your Expert Witness Gets Approved By the Court”
  1. Pat Murphy says:

    As an expert, I’d like to comment:

    1. Locate an expert early on. That means well before any designation deadline. Discuss the merits of your case in brief. They may request a small retainer to conduct further review of documents. It’s worth the investment to know if the theory can be supported.

    2. Any expert “should” check for conflicts. My experience is that most attorneys fail to provide the parties involved unless specifically asked.

    3. If you are not sure what type of expert you need, do your homework. You’re not going to be able to designate an expert without the expert’s approval which usually means a retainer or fees. Make sure you retain a highly qualified expert regardless.

    4. Attorneys have problems with their calendars. Some just don’t look at them. All deadlines should be shared with your expert well in advance. If they are caught with a short deadline, it may not turn out well (as in your report will be very late).

    5. I know of no expert who allows themselves to be “in reserve”. As a business practice I don’t want to limit myself by standing by. If you want to retain me, there will be a retainer. If not, then limit what you tell me initially because opposing counsel may also call.

    6. Your expert should help with all production and discovery requests. That’s where they can really help you. If you wait until a deposition to ask for assistance, it’s really too late.

    7. Never rush an expert. See #4.

    Pat Murphy
    LPT Security Consulting

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