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Last Minute Expert Witness Designations

May 27, 2011

The amount of due diligence exercised by attorneys seeking to retain an expert witness ranges from very little to comprehensive.  Attorneys sometimes simply request that the expert performs a conflict check before being retained.  At other times, the expert is interviewed extensively and asked to provide several references.  This wide range of behavior is affected by the perceived significance of the retention, the case budget and/or the preferences of the hiring attorney. 

Nothing frustrates an expert more than when an attorney calls at the last minute and expects an expert report or declaration shortly thereafter.  These requests impose an immediate scheduling hassle and are often made more difficult by the fact that they are typically from attorneys who have previously retained the expert.  An extreme example of this phenomenon occurs when an attorney designates an expert without his or her prior knowledge.  This strong working relationship with a repeat client, only adds extra incentive for the expert to perform the work.

Despite feeling pressure to keep a good client happy, experts are advised to avoid accepting last minute requests without performing sufficient research and analysis.  A proper conflict check is always important.  In addition, an expert is required to perform a sufficient amount of work to develop a reasonable basis for his conclusions, or risk exposure to a potential Daubert challenge and damage to his professional reputation.

Good customer service is obviously important in our profession.  However, an experienced expert knows when it is appropriate to push back on unreasonable client requests.

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