What is the legal liability of an expert witness
The law generally affords certain immunities to an expert witness from civil liability stemming from testimony or communications made in the course of litigation. The law on this subject is somewhat sparse and varies from state to state, but the expert witness should note the following four general guidelines.
- Expert wit
nesses are almost always immune from suit for defamation, negligence, and the like from adverse parties.
- There is a continuing trend, however, of allowing the retaining “friendly” party to bring negligence claims against the expert witness.
- Such negligence cases against a friendly expert witness may be hard to prove as the party may need to prove that but for the expert’s negligence, they would have won their case (a trial within a trial requirement).
- Expert witnesses are not immune from criminal perjury liability, professional disciplinary actions, or sanction from their professional associations.
Suits arising out of expert witness services are relatively rare. I have been working with experts for many years and have never met one who has been sued for expert witness negligence. Expert witness liability is so uncommon that many (if not most) expert witnesses do not maintain expert witness insurance (errors and omissions coverage).
Many suits against expert witnesses by retaining counsel are countersuits brought after the expert sues counsel for non-payment of his expert witness fees. In light of this fact, collection suits against retaining counsel should be brought with caution. It is better practice to avoid collection difficulties through a well written expert witness contract or expert witness retainer agreement such as SEAK, Inc.’s Expert Witness Retention Contract.