What Happens If Your Expert Witness Is Disqualified?By HG.org
No matter how qualified the expert witness appears for a certain case, disqualification happens in more than half of the cases depending on either criminal or civil processes. When the profession is no longer a designated expert witness, it is still possible to keep him or her to help find and assess a new expert witness to help the case.
The Disqualification of an Expert WitnessThere are multiple points when the judge or opposing legal team may raise an objection or a challenge against the expert witness. These are generally announced through the initial stages of the case where the professional will face an interview with both parties. However, the expert may face a Daubert challenge against his or her reliability or relevance to the subject matter of the case depending on the testimony or opinions based on the evidence. Same face disqualification when they contradict prior testimony or when attempting to refute something from the lawyer. There are many professionals that will not remain as a designated expert
witness when the challenge exposes some weakness or vulnerability.
Many lawyers will opt to use the same expert to research and hire a new expert witness that will remain on the case and help out with evidence, testing and explaining the matter to the courtroom. The expert becomes a consultant with either the same payment given or a reduction due to the loss of providing testimony and other services for the legal team. The disqualification may also remove the professional from the courtroom so that he or she has no part in the proceedings. However, the individual may help the lawyer assess testimony, understand a report and explain the subject matter to the legal team.
The Expert as a ConsultantWhen the professional is not able to remain a designated expert witness for the case, he or she may have use as a consultant. While many legal teams may no longer need the professional after a disqualification for certain reasons due to a lack of faith in the professional’s experience or testing methods, other lawyers may still want to keep the expert to provide assistance in finding a new expert with a better chance of passing the opposing legal team’s questions and the assessment by the judge. As a consultant, it is possible for the expert to help the lawyer understand the subject matter further to analyze the possible testimony another expert may provide.
Integrity of the CaseSome expert’s face disqualification for a lack of credentials, others do not have reliable testing methods to receive results within a small error rate. To keep the integrity of the case, the opposing legal team or the judge may determine the expert is not sufficiently qualified based on behavior or a lack of propriety. The courtroom requires respect and a demeanor fit for a professional atmosphere, and if the expert lacks the necessary skills to demonstrate integrity, he or she may fail to remain part of the proceedings. It is also possible to attack the integrity of the case by exposing certain confidential materials or communicating with the opposing lawyer about the case.
The Consequences of the DisqualificationWhile the expert may not have the ability to provide testimony or have admissible reports and details or opinions attached to the case, he or she may still act as a consultant. However, some consequences may lead to the dissolution of a contract between the lawyer and the expert due to the loss of available services for the case. This could cause a severe lack of compensation until a new retention contact is available for consultation work. The professional may also suffer in the expert community for the loss of remaining as a designated witness.
With the legal team, the lawyer in the case may lose a significant amount of time with the loss of an expert witness. He or she will need to find a new one and using the former expert as a consultant may greatly speed up the process. If the expert is still reliable in the subject matter expertise and experience, he or she may lend a hand in discovering, matching and assessing a new expert witness.
The Consultant in the CaseThe consultant usually works only in the background, supplies the legal team with knowledge and expertise in the field of study, assesses the new expert and explains the relevance and reliability of testing methods and testimony of the other professional.
While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.