Usually, there is a close relationship between an expert witness and the attorneys for a party on whose behalf the expert has agreed to testify — usually, but not always. When things go wrong between an expert and the lawyers who retained him/her, they can go very wrong.
The recent Illinois appellate court decision in McNally v. Morrison, ___ Ill. App. 3d ___ (1st Dist. No. 1-09-2643 March 15, 2011) shows how bad things can get, although the holding of the case is really just about personal jurisdiction. A link from the official Illinois courts website to a pdf copy of the case follows: http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/March/1092643.pdf
The appellate court case resolves an issue of personal jurisdiction in a suit filed by plaintiffs (attorneys who represented a plaintiff in an underlying medical malpractice case) against their own out-of-state expert witness. The lawsuit alleged the expert from Ohio conferred with the Illinois lawyers and gave them an opinion that the defendant doctor was guilty of professional negligence, but then at his deposition, the expert completely changed his mind and opined the defendant acted appropriately. This lawsuit alleged that just prior to the deposition, the expert disclosed he had not actually reviewed critical deposition testimony and evidence. The lawyers sued the expert for breach of contract, consumer fraud, fraud and professional negligence.
To be clear, the only issue of this case is a matter of civil procedure: Whether the Illinois court has personal jurisdiction over the Ohio expert. The court decided that such jurisdiction exists over the non-Illinois resident because the expert’s work was done for Illinois attorneys to serve as an expert in an Illinois suit and was intended to produce a result in Illinois. The appellate court rejected the expert’s argument that all of his work was performed in Ohio. Instead, the court found the expert’s services were pursuant to a contract with Illinois lawyers and directed at Illinois residents. Further, the court held that Illinois has a “substantial interest” in adjudicating a dispute which concerns an expert witness in an Illinois lawsuit. Thus, the appellate court decided that “sufficient minimum contacts” existed between Illinois and the expert such that the expert should reasonably ancipate being brought into court in Illinois, and accordingly, Illinois courts have personal jurisdiction over him.
However, there is a broader issue here: How can lawyers avoid disputes with their experts?
The answer is full honesty by both sides, but also a lawyer’s willingness to challenge the expert to be sure the expert is being forthright.
The attorney must provide all relevant information to the expert to allow the expert to be aware of all facts and issues. Additionally, the attorney must spend a lot of time with the expert to ensure he/she is thoroughly familiar with those facts and issues. Sometimes, that effort can be through telephone calls, especially for simple matters, but it is vastly preferable that the communications be face to face. Yes, that will mean the litigation expense will be slightly higher, but the risk of a problem occurring between expert and lawyer will be substantially reduced.
To be certain the expert has all necessary information, the lawyer must also be thoroughly familiar with that same information. The attorney must then be willing to “quiz” the expert about the evidence which has been provided. If the expert has only “skimmed” over deposition transcripts or other information, he/she will not be able to properly answer the lawyer’s “quiz” questions and the lawyer will know that more time must be spent by both lawyer and expert.
The nightmare of litigation involving expert witnesses is exactly that which occurred in the McNally appellate court case: The lawyer who retained the expert is in the pre-deposition meeting with the expert and suddenly discovers the expert is not thoroughly familiar with the relevant evidence. The worst possible time to discover that the expert is unprepared is when the expert is from out-of-state, is being deposed in his/her home state, and the opposing counsel is about to walk through the office door to begin the deposition. Most of the time, the expert disclosure deadline has already passed so cancelling the deposition will not be a viable option. Therefore, the time to ensure the expert is adequately prepared is before the expert is even disclosed.
Of course, the responsibility should not be solely placed upon the lawyer. The expert has an obligation to be prepared and clear about his/her opinions. However, only the lawyer owes ethical obligations to the client, so the lawyer must take all steps necessary to be sure the client is well represented. Therefore, the lawyer miust ask the expert about his/her qualifications; ask about the information reviewed; determine whether additional information is needed; identify the issues raised by the other side; and assist the expert in understanding the questions which opposing counsel will ask.
Doing these things could be perceived as a discourteous “challenge” of one’s own expert, but it need not necessarily be so perceived. When dealing with experts, a lawyer should always tell them that the goal is to avoid having the expert be embarrassed in any manner at the time of questioning by opposing counsel. The expert must be made to appreciate that the “challenge” of one’s own expert is intended to prevent the expert from looking foolish.
At a time when so many complex lawsuits are decided by a “battle of the experts,” an attorney must advise the client that the handling of expert witnesses is one of the most critical phases of litigation. As such, time spent in detailed communications with experts is time well spent.