An attorney complied with Federal Rules of Evidence, gave disclosure of his expert witness, including any required written report or statement in lieu of a written report, and the case is moving towards a trial date certain.
Unfortunately, his expert witness unexpected passed away. Such a statistically improbable event can, and does, happen. An example is the high profile patent infringement case, Apple v. Samsung, where Apple’s initial damage expert witness passed away.
Part of what the Apple headlines can do is to get trial lawyers to think about contingency planning for expert witness testimony. It is not only death that can create a need for a new expert witness in a case; it can also be unavailability, incapacity, preclusion, evidence suppression, conflict, reconfiguration in response to opponent’s expert witness disclosure, and more. It is not an easy process, especially if you need to retrieve files from the deceased expert witness.
Contingency planning for the expert witness begins with familiarity with the Federal Rules of Evidence. The trial attorney should be familiar with the rules governing who, what, and when expert witness information is required to be transmitted, including, but not limited to FRE Rule 26(2) and FRE 702, 703, and 705. Also, be current on whether, when, and how to file a formal motion with the court for permission to make the substitution of an expert witness. One should seek out the rules, high court cases, and colleague narratives. That’s the legal end of preparation.
The practical end of contingency planning for expert witnesses starts with your initial selection of the expert witness. When first you search for expert witness candidates, save every resume you receive, whether you select the expert witness or not. Develop a metric for your expert witness selection in a particular case and rank the candidates for the position of expert witness. Reach out to at least top three candidates and interview each one, fitting the additional data into the matrix, and monitoring whether the ranking shift as a result of the interviews. Select your top expert and save the resume and contact information for the next best expert witness so that you can easily access the other expert’s information if needed.
It is also worth discussing with your client and developing an actual contingency plan for the expert witness, including whether one has the ability and/or the case has the necessity for hiring a second expert witness. This is a step with greater complexity, made while keeping the FRE in mind. You will have to gauge, for example, whether having two expert witnesses on call will spiral the other side and aggravate the judge, or will allow you to simply release the second expert witnesses, if unnecessary.
In the heart of your metric on contingency planning for expert witness testimony, try to define your tolerance for risk.
- Do you have a working relationship with an expert witness service through which you can reliably and quickly gain access to additional potential expert witnesses if a change is necessary?
- Do you have a backup expert in mind?
- Did you save the contact information for other experts?
- Do you have a contact person who can help you retrieve files from the deceased expert if the unfortunate event happened?
- Are you a trial lawyer who can easily construct work-arounds in areas as complex as expert witness testimony?
No small amount of strategy should go into the selection of the expert witness, and, likewise, a good dose of forethought should be put into questions around contingency planning for expert witness testimony. Given all of the hard work that goes into trial presentation and that your fees are likely at least in some part related to performance, can you give any reason not to plan ahead, whenever possible?
By: Paloma A. Capanna, Attorney & Policy Analyst