By James J. Mangraviti, Jr., Esq.
Introduction
We are frequently asked if an expert witness needs insurance. The short answer to “needing” insurance is no. There may be a legal requirement to carry liability insurance in order, for example, to drive an automobile or practice medicine in a hospital. I have not, however, heard of any law or regulation requiring that an expert witness carry liability insurance. I have also never heard of any clients requiring their expert to carry liability insurance – although this may conceivably happen.
A better question than “does an expert witness need insurance?” is “should an expert witness get liability insurance?” That’s a trickier question which requires an understanding of the potential liability of an expert witness for malpractice and self-reflection on your personal tolerance for risk.
Understanding the Liability of Expert Witnesses
To decide if you should carry liability insurance for your expert witness practice you need to have a sense of the risk that you are placing yourself in by serving as an expert witness. Generally speaking, the malpractice risk of serving as an expert witness is relatively low, but certainly not zero.
What do I mean by relatively low? Expert witnesses can be sued for malpractice, but this is much rarer than the expert being sued for their “day job” professional work. In 25+ years of teaching and mentoring expert witnesses I have become personally aware of only a handful of experts who have been sued for malpractice. On the other hand, when I ask my physician clients and students how often they have been sued for medical malpractice, it is very common that a doctor has been so sued, some multiple times. So relatively speaking, there aren’t a lot of malpractice suits out there targeting expert witnesses.
Why Are There Relatively Few Lawsuits for Malpractice Against Expert Witnesses
There are two reasons why lawsuits against expert witnesses are relatively rare. First, in most jurisdictions, expert witnesses have typically been given legal immunity from suits for malpractice from the opposing party. Malpractice suits by the retaining party against the expert are typically allowed.
The second reason is that a malpractice suit against the expert is typically difficult to win. The expert’s client would not only have to prove that the expert messed up (say by blowing a deadline, a math error, not showing up for trial, etc.), they would also have to prove that had the expert not screwed up, the client would have prevailed in the case. This so called “trial within a trial” can be very difficult to prove.
Alternatives to Manage Risk
There are things you can do to manage risk regardless of whether you decide to purchase liability insurance for your expert witness practice. These include being careful not to miss deadlines, carefully checking for conflicts of interest, double checking your work, and including a clause in your retention contract limiting your potential liability to the fees you have been paid.
Does an Expert Witness Need Insurance – Things to Consider
If you decide to explore obtaining liability insurance for your expert witness practice consider the following:
- Expert Witness Liability Insurance Cost. Exert witness liability (Errors and Omissions or E&O) insurance is relatively inexpensive. Inexpensive is a good thing – sort of. That low cost is a direct result of the fact that there are relatively few claims against expert witnesses. The fact that there are relatively few claims against expert witnesses also means that it is fairly unlikely that you will ever need the insurance you are paying for.
- Expert Witness Liability Insurance Coverage. If you are looking to purchase insurance, ask for a sample policy and read it carefully. Look especially carefully at any and all exclusions. Make sure you understand exactly what you are and are not buying.
- Expert Witness Liability Insurance – Claims Made or Occurrence. Make sure you understand before purchase whether you are purchasing “Claims Made” or “Occurrence” coverage. “Occurrence” expert witness liability insurance coverage (if you can find it) is far superior to “Claims Made” expert witness liability insurance coverage. With occurrence coverage, you are covered for a claim for your alleged actions during the policy period regardless of when you are eventually sued. In a claims made policy, your alleged wrongdoing has to occur within the specified time limits of the policy and the claim must be reported to the insurance company while you still maintain the insurance. This means that with a claims made policy you have to buy a so-called “tail” if you want to continue to protect yourself after either dropping the coverage or retiring or what not.
Bottom Line
Whether or not you need insurance for your expert witness practice is a personal decision based on your own tolerance for risk and how well you want to sleep at night. Many experts we assist maintain errors and omission liability insurance for their expert witness practice. More commonly, expert witnesses that we deal with do not maintain liability insurance. The choice is yours and this choice is ultimately a business decision. If you do decide to purchase expert witness liability insurance read the policy carefully before you buy to understand exactly what you are – and are not – covered for.
About the Author
James J. Mangraviti, Jr., Esq., has been teaching, training, coaching, and supporting expert witnesses for over 25 years. He has written, taught, and consulted extensively about expert witness practice management. Jim is a Principal of SEAK, Inc – The Expert Witness Training Company. He is the co-founder of SEAK’s National Directory of Expert Witnesses, the #1 rated expert witness directory and the creator of SEAK’s signature How to Start, Build, and Run a Successful Expert Witness Practice course. For more information on SEAK, Inc. – The Expert Witness Training Company, visit www.testifyingtraining.com Jim can be reached at 978-276-1234 or jim@seak.com.