November 02, 2014
If you're working on a case involving a federal, state, or municipal entity, you may be considering how to approach securing an expert witness with the value-added resume of previous government employment. Former government employees can offer terrific insights to the intricacies of both legal requirements and the application of those requirements, particularly in regulatory areas that may involve agency determinations more often than published judicial decisions.
To begin your selection process, it will help you to review at least two points. First, current government employees are ineligible to serve as a private, compensated expert witness, with very narrow exceptions. Second, there may be a cooling off period following the termination of government employment.
The broad restriction against government employees serving as expert witnesses in private litigation comes from 5 CFR §2635.805(a), which reads "An employee shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest, unless the employee's participation is authorized by the agency." Additional details follow in this same section.
The logic of this and other regulations and court cases upholding the regulations is fairly straightforward, including conservation of government resources. The United States Office of Government Ethics Legal Advisory DO-07-019a includes an outline of issues and cases on point.
It is also worth reviewing 18 USC §207, "Restrictions on former officers, employees, and elected officials of the executive and legislative branches" as restrictions may apply to certain former employees for a period of up to two years when entering into advisory or expert roles in specific types of litigation.
So what do you gain for your efforts in reviewing these and other relevant statutes, regulations, and guidance documents on the permissibility of a former government employee serving as an expert witness?
Government employees are fully immersed in the law. Where the potential government expert witness was a Member of Congress or a legislative staffer, the prospective expert witness participated in writing the law. These expert witnesses bring the added narrative of legislative intent, provisions that may have been drafted but deleted, and a subsequent amendment or modification history.
Where the potential expert witness was an agency investigator or complaint adjudicator, the prospective expert witness can add to the legal research of your team. Government employees involved in day-to-day statutory, regulatory, and advisory opinions quite often have a more fluid and detailed working knowledge of requirements than litigation attorneys with an occasional client in a given area.
The former government employee who serves as an expert witness can present a unique opportunity to lend vaulted credibility to a case, as well as legal input to the development of the theory of the case. Check for applicable restrictions to review with the prospective expert witness to ensure that as of the date of retainer, you will suffer no interruption to your case presentation at a later date.