By: Jessica Mahon Scoles, Esq.
Counsel calls and tells an expert he has an interesting and potentially lucrative case. The catch? The expert needs to be designated almost immediately and her affidavit or report is due soon after. If the expert chooses to accept the case, she is faced with a series of difficult, if not impossible challenges. These may include getting the pertinent records, reading and analyzing those records, conducting interviews, researching, making a site visit, and, of course, drafting her report.
Despite her reservations, the expert accepts the case. But, because of time constraints, the expert is unable to follow her usual process, a process she developed to ensure high quality work. Instead, the expert is forced to take “shortcuts” to meet the deadline. The expert makes a sloppy mistake, one that comes back to haunt her at her deposition, trial, or even in an entirely different matter.
Cautionary Tale: Records Not Reviewed
Consider a hypothetical physician expert witness who accepts a last-minute assignment that requires her to examine several plaintiffs in the case before quickly generating several reports. Due to the tight schedule, the expert does the exams and writes the reports before she is able to review the relevant medical records or the plaintiffs’ deposition transcripts. Defense counsel at the deposition goes after the expert accusing her of bias, sloppiness, and reaching conclusions without having considered all of the evidence. As might be expected, the deposition does not go very well for the expert.
Cautionary Tale: No Site Visit
Now, imagine a hypothetical safety expert witness retained on an accident case. Facing a tight deadline, the expert does not follow his standard protocol of personally inspecting the accident scene. Instead, retaining counsel convinces him that reviewing photographs of the accident is good enough.
At the deposition, the expert’s failure to visit the site is exposed. The expert is unable to satisfactorily explain his decision to rely on photographs in lieu of a site visit; the expert’s own discomfort at having taken a shortcut is apparent. He quickly realizes it was a serious mistake to take a last-minute assignment that required him to abandon his own protocols.
As these examples demonstrate, last-minute assignments are dangerous. An expert who agrees to take shortcuts can ruin his reputation. For that reason, when counsel calls with a “last-minute assignment,” the expert should carefully consider the following:
- Why he was contacted at this late date? Is it because counsel was sloppy or procrastinated? Or is it a genuine emergency (such as a previous expert passing away or becoming ill)?
- Ask retaining counsel to seek an extension of the deadline for expert disclosures and/or reports. Courts have the discretion to extend such deadlines and often will at the request of the parties.
- Whether the experts’ protocol for producing high-quality work can be followed within the deadline.
If retaining counsel’s answers to these questions are unsatisfactory or if the expert is unable to do high-quality work in the allotted time, the expert is better served declining the assignment.
About the Author
Jessica Mahon Scoles, Esq. is a civil litigator who has worked with expert witnesses in a variety of cases. She currently serves as Vice-President of The Expert Witness Training Company SEAK, Inc. (www.testifyingtraining.com). Prior to joining SEAK, Jessica practiced law at a boutique firm in Boston (where she was named a Super Lawyers Rising Star), was a law clerk for Hon. Donald L. Cabell of the United States District Court for the District of Massachusetts, and was a litigation associate at the national law firm of Bingham McCutchen, LLP. She received her BS degree in Film Production cum laude from Boston University and her JD degree summa cum laude from Loyola Law School.