Abuse of expert witnesses is very common according to James J. Mangraviti Jr., Esq.
Here is what attorney Mangraviti had to say about this abuse.
Q. Attorney Mangraviti, how common is abuse of expert witnesses by retaining counsel?
All too common. When I teach and mentor expert witnesses I emphasize to them that they are far more likely to be abused by retaining counsel than opposing counsel. Expert witnesses usually find the above statement surprising.
Q. What are some of the more common abuses retaining counsel engage in?
- Non-payment of the expert witness’s fee.
- Unethical behavior by retaining counsel.
- Purposefully conflicting the expert witness out of the case.
- Making disclosures about the expert’s testimony to other parties without checking with the expert first.
- Not informing the expert of a Daubert challenge.
- Failing to prepare the expert witness for deposition or trial.
Q. How can the expert witness prevent many of the common abuses?
The main lines of defense are a strongly worded expert witness retention agreement such as SEAK’s Expert Witness Retention Agreement and a realization that retaining counsel represents his/her client and not you.
Q. What kinds of serious consequences can there be for the expert from retaining counsel abuses?
The results of abuse can be quite serious. The best case scenario involves the expert not being paid. On the far more serious side of the spectrum is damage to the expert witness’s reputation which has the practical effect of ending the expert’s career.
Attorney Mangraviti will be speaking at the SEAK National Expert Witness Conference to be held on May 3-4, 2014 in Orlando, FL.
How to Protect Yourself from Potential Abuse from Retaining Counsel
James J. Mangraviti Jr., Esq.
The vast majority of problems expert witnesses face stem from the expert witness’s relationship with retaining counsel. Indeed, an expert witness is far more likely to suffer from problems caused by retaining counsel than opposing counsel. Attorney Mangraviti will offer his insights on how to differentiate between abuse and the inherent difficulties associated with expert witnessing. Attorney Mangraviti will then offer practical advice for the prevention and/or management of abuses from retaining counsel such as: getting stiffed, deposition fee reduction, unrealistic deadlines, cancellations, Daubert issues, failure to prepare, “wordsmithing” draft reports, sandbagging, being purposefully conflicted out of the case, unethical behavior, being disclosed without being retained, etc.