Designation of Experts - The Discussion Continues

We have recently been discussing the problem of being designated as an expert without permission and/or without having received a retainer and often without even knowing about it. (If you missed the discussion, the PDF summary can be downloaded from the right column of this blog.)

One of our newsletter readers emailed me this week regarding that discussion:

"...one of the recurring questions was how to discover whether or not we have been disclosed as experts without our knowledge. In this day of IT and search engines, there must be a way to do this. Adversary attorneys always seem to know of our past testimony, most likely from Lexis-Nexis searches, and attempt to use it to impeach us. My question is this: would a Lexis-Nexis search be able to discover all the times a given expert has been disclosed? If it does, it would pay for us to subscribe to Lexis-Nexis, or at least pay for periodic searches, or even have friendly retaining attorneys do it for us. If we can discover that we have been disclosed without payment of a retainer, that is the first step to collecting damages, and to stop this from happening again."

Here was my reply:

"I called an attorney friend of mine who is familiar with Lexis and here was his take: 'Because expert witness designations are not always part of the public record, there is no easy way to know when an attorney has designated an expert. LexisNexis would not yield this information, as designations are usually only exchanged between opposing parties. There is a distinct difference between when an expert has testified and when an expert has been designated. Expert testimony is much easier to uncover than designations.'

The attorney I spoke to is in California and pointed out that in that state (and believe me, it differs a great deal from state to state!) the attorney has to swear under penalty of perjury that the expert has agreed to testify at trial. Therefore, an expert who designates an expert in California without their permission risks criminal penalties. Some other states have similar statutes."

Any thoughts on this subject? Is the situation different in your state? Is this something the American Bar Association should/could address? Post your comments and suggestions here or email them to me at meredith@expertcommunications.com . This is too common a problem and I'm not one to just say, "well, that's the way it is".