| Bar Bulletin |
August, 2004 |
How Independent is Your Expert
Witness?
By Larry M. Epstein
It may be detrimental to an
expert witness’s credibility if even the appearance of a lack of
independence exists. In today’s legal environment, discrediting an expert
based on his or her relationship with counsel, the client or the judge is
common. Let’s examine how to identify an expert’s independence.
Standard Procedures to Identify Independence
Consider the following four procedures to verify your expert’s
independence:
-
Ask the expert to contact
all members of his or her firm to make certain that no member has
potentially problematic relationships with any party involved in the
case. These relationships may include:
- Financial, such as partners in other businesses,
- Family, either directly or by law and
- Any close personal relationships.
-
Avoid billing
relationships that are not your expert’s standard practice. These may
include premium billing rates or fixed-fee retainers regardless of
actual time spent.
-
Identify previous
services provided to any party in interest.
-
Keep in mind that if your
expert typically represents only one side of an issue, he or she may
lack independence. For instance, an expert who works only for plaintiffs
or only for spouses employed outside the home could present the
appearance of a lack of independence.
Naturally, the larger the
firm the more difficult is the task of proving independence. And in
smaller markets independence just may not be possible. But procedures
should be in place to identify potential issues.
Even if the expert has
determined that he or she has no conflict of interest, the expert should
disclose to you all relationships, past and present, with all parties that
might appear to affect independence.
Turn an Expert Into a Consultant
What if your potential expert witness has great credentials but is not
independent from your client? Consider using him or her as a consultant
and finding another expert witness.
Using a consultant in
addition to testifying experts gives you many advantages. As a consultant,
the professional is free to act as an advocate for you and your client and
to work actively toward a winning solution for your side. As an advocate,
the consultant can pursue options that can provide better results for your
client and determine a strategy for achieving those results. Yet a
consultant’s services to an attorney are protected by privilege and work
product.
With a financial advocate
on the litigation team, the outcome of the case can provide positive
results.
Can Your Expert Witness Pass the Independence Test?
Ultimately, you must decide whether a conflict of interest or an
independence issue exists that may affect your ability to use the expert
in court. A little protection up front can help you avoid serious
repercussions down the road.
Larry M. Epstein, MS, CPA, CVA, is a partner at Hertzbach & Company,
P.A., a regional CPA & business consulting firm. He also serves as
director of the firm’s Litigation Consulting Group.
