Thursday, July 26, 2007

Expert to Expert Advice Request

As I have said before, so many experts express frustration about encountering situations in the legal industry that they have no experience with in their own field and thus no guidelines. You, our readers, have been very generous in sharing your experiences and best practices with other experts, so on behalf of an expert who contacted me last week, I ask for your assistance.

Here is the question:

If an expert talks to one side in a case and, having heard some details about the case and perhaps done a bit of research, decides that in fact she cannot support that side's position...but she could support the opposition's side...is it unethical or otherwise looked ill-upon if that expert then accepts work for the opposing counsel on the very same (or other similar) case?”

10 comments:

Anonymous said...

Several years ago I was hired by an attorney even after telling him I believed his client's product was dangerous. It was a product liability case, and I had published an article regarding the danger of such products. The attorney said he wanted to keep me from the other side. After doing some tests on the product I convinced the client to settle the case.

As to your question, you could be willing to serve as an expert for the other side but make it clear to the first attorney that you are doing so, and also that you will not use any priviledged information to which you were exposed.

keith s wilkinson said...

yes, that would be extremely unethical behavior. once you look at the case, you are stuck with the side that brung ya. if you don't like the result, tell them and move on to the next case.
if you decide to work for the other side, i believe you will soon lose your credibility with everyone and, after all, that's all we've got.
keith

Anonymous said...

It's not "unethical" if you accept work for the other side. You haven't been retained by the first side, and are in the process of developing your initial opinions. The first side, on hearing this, obviously doesn't want to use you, but there's no legal or ethical duty preventing you from testifying for the side that your opinions support. I've been in this position before, several times.

Anonymous said...

I don't believe it is "unethical". When I am first contacted (usually by phone)I tell the attorney "Please don't provide me any confidential or priviledged information..." - I even have it written down. I just need enough information to determine if the case is a fit and I have no conflicts. In the one case where this has happened to me the first side in an attempt to disqualify me - just prior to trial - argued (lied) that in that initial conversation they had told me not only the strengths and weaknesses of their case but also their trial stategy. They pulled out all the stops, but lost the motion, and the trial. You can do it, but be prepared for a fight!

Anonymous said...

I would think it depends upon your feeling about how privy you have been to information that would not normally be part of discovery. This would include strategies, consultants names etc. I personally would not take either side.

Tileman said...

Credibilty is King. I think it would be unethical, to work on the other side. So many Experts are nothing but hired guns, Do you want that kind of name.

Anonymous said...

No, this is not unethical. I had a related but not exactly parallel situation a few years ago. An expert referral service called me and listed four qualifications a plaintiff's attorney needed, all of which I had--so I said I would be interested.

Then I learned that the defendant was already a client of mine in another case, so I declined the assignment with the plaintiff, notified the general counsel of the defendant, and was engaged on their side!

Later, the plaintiff tried to get me excluded from the case because I had received allegedly confidential information. But the plaintiff's four qualifications were all I had received, so their effort failed. The referral service had publicly disclosed the qualifications needed. My client went to trial with the case; I testified; and my client won.

Randall Barkan said...

If, as in your hypothetical, you have had enough discussion about the case to reach the conclusion that you cannot help the party who has contacted you, you have undoubtedly gone too far to then pop up as an expert for the other side. A reasonable attorney on the other side would probably avoid hiring you anyway. Why invite a motion to disqualify that risks making both you and them appear sleazy to the Court?

Anonymous said...

This happened to me several months ago. I told the inquiring attorney the specific location of the accident, type of vehicle and trailer involved, and the name of the opposing attorney. I told her that “I had a conflict with assisting her on this specific case.” She agreed.

I would not necessarily feel the same about “other similar” cases. I am registered/professional engineer, but I feel this is an ethics issue regardless of the expert’s occupation.

Anonymous said...

I have been retained by both parties in some cases where I acted as a single joint expert. I have suggested such an arrangement to attornies when both parties contact me about a case.

It is not a good policy to work for an opposing litigant when you have discussed the case with an attorney but it is not unethical.