Even the appearance of bias can be detrimental to an expert witness’s credibility. In today’s legal environment, it’s common to discredit experts based on their relationship with counsel, the client or the judge. Here are three common red flags that indicate an expert may lack independence — and what you can do to prevent disqualification.
1. Undisclosed conflicts of interest
Ask the expert to contact all members of his or her firm to confirm that no member has potentially problematic relationships with any party involved in the case. These relationships may include:
- Financial, such as partners in other businesses,
- Family, either directly or by law, and
- Any close personal relationships.
It’s also essential to identify and evaluate previous services provided to any party involved in the case. Naturally, the larger the firm, the more difficult the task of proving independence will be. And in smaller markets, independence may not be possible. But procedures should be in place to identify potential issues. Even if the expert has determined he or she has no conflict of interest, the expert should disclose to you all relationships, past and present, with all parties that might appear to affect independence.
2. Questionable billing practices
Avoid billing relationships that aren’t the expert’s standard practice. These may include premium billing rates or fixed-fee retainers regardless of actual time spent. In addition, experts should never be paid fees that are contingent on the outcome of the case. These billing arrangements may cause experts to be perceived as hired guns by judges and juries.
3. Partisan specialists
Experts who typically represent only one side of an issue may lack independence. For instance, an expert who works only for plaintiffs, or only for spouses employed outside the home, could present the appearance of a lack of independence.
If a potential expert witness has great credentials but isn’t independent, you don’t necessarily have to throw in the towel. Instead, consider using the expert as a consultant and finding another expert witness. As a consultant, the professional is free to act as an advocate for you and your client and to work actively toward a winning solution for your side. Plus, a consultant’s services to an attorney may be protected by privilege and work product.
Can your expert witness pass the independence test? Ultimately, you must decide whether an independence issue would impair your ability to use the expert in court. A little protection up front can help you avoid serious repercussions down the road. Please contact us if you have any questions.
