When to hire an expert witness is a strategic decision trial attorneys take seriously. In some states in certain types of lawsuits, an expert witness must provide an opinion before a case can even be filed. In other cases and jurisdictions, it can come down to the wire of a court order to exchange expert witness reports. It can even be done during trial where a rebuttal is needed.
A leading reason lawyers discuss timing of hiring an expert witness is because of the unsettling topic of what to do if your expert changes his mind. Does that, too, become part of necessary disclosure? What does it do to negotiations? Can it trigger a motion to dismiss?
In one of the more interesting expert witness cases of 2012, a federal Circuit Court ruled that an expert witness can modify or change his opinion even after he has provided a written expert report, particularly if he realizes there were errors in his opinion. As long as there is continuing reliance upon the initial opinion on a material matter, the expert witness should promptly provide the client with a supplementary report, highlighting and explaining the change from the initial opinion.
It’s important to consider how these scenarios crop up. As any trial lawyer knows, you discover as much as possible before the opening gavel, but then keep both ears and both eyes open during trial to that which you may not have discovered. A lawyer’s theory of a case may evolve during litigation and, uncomfortable though it is, even at trial.
Generally speaking, the expert witness only learns as much about the facts and circumstances discovered in the case as are shared with him by the trial lawyer. A lawyer may not be able to afford to integrate an expert witness at the level of constantly providing all materials, but he should develop a conscious process to review receipt of discovery materials specifically with the expert witness in mind. It is hazardous for the trial lawyer to hire an expert witness, get a preliminary opinion, and not to then speak to the expert witness until 30 days before trial.
The same can be said of the trial lawyer making sure to understand the full opinion of the expert witness, whether over time or as new information is transmitted to him or another stage of the expert’s investigation has been conducted. The key with the expert witness is the same as with any other witness: stay in touch, ask specific questions, and obtain or create documentation at every pivotal step.
By: Paloma A. Capanna, Attorney