Conflicts of Interest When Expert Witnesses Switch SidesBy HG.org
There are certain issues with an expert witness switching from one legal team to another, and many of these involve the conflict of interest where the professional may have knowledge of the details or strategy the other side may have. Disqualifying the expert for engaging in this activity is often something the judge will consider based on the specific case.
Communication with the Expert WitnessWhile the expert may not switch sides immediately, one lawyer may engage him or her in communication that could cause a conflict of interest if either party discusses the case in any manner. After such talks, some experts may switch sides. The lawyer that originally hired the professional may initiate a motion to disqualify the expert due to a conflict of interest. This is a possible outcome if the lawyer did disclose certain details about the case before the professional switched to the other legal team. This conflict of interest could provide the opposing side with an unfair advantage.
Disqualification in the CaseIf the lawyer feels that the expert is either colluding with the other legal team or has a conflict of interest, he or she could file a motion to disqualify the expert. The professional may have a working relationship with the other lawyer, but for a disqualification in the case, the expert usually must know something about the case or provide an advantage in these situations. However, if the expert does not have the relevance necessary for the subject matter, or his or her testing methods are not reliable with results that are confirmable, then disqualification is often necessary.
What Switching Sides MeansThe primary means of stopping an expert witness from switching from one legal team to another is the disqualification of either the expert witness or the lawyer. Some motions require the need for both due to direct or intentional sabotage of the case. For an expert to switch sides, he or she usually finalizes a better deal with the other lawyer. If he or she has any information from the original lawyer, he or she may face a disqualification as a motion from the original legal professional that hired him or her. A conflict of interest issued at this for disqualification is usually how the legal team will accomplish this.
Switching sides does not always mean the expert witness will face a disqualification and need to leave the case as a designated expert witness. However, switching from one legal team to another could lead to a negative reputation in professional circles or a negative impact with some lawyers for the action. This could invalidate or breach contracts and then cause monetary penalties depending on the contract specifics. Then, the courtroom may have less faith if the judge or jury understands the circumstances that led to the switch from one side to the other. If the professional does not face disqualification for his or her actions, the court may have less faith in testimony.
Motions to Not DisqualifyIf there is a reason and proof to believe that the expert switching sides does not complicate the case, then a lawyer could initiate a motion to not disqualify either the expert or the lawyer involved in the matter. If the expert remains on the case, he or she may need to back out of the original retention contract and negotiate a new one with the other lawyer. This is important to bind his or her services to the other legal team and ensure he or she receives payment for expenses, lodging, rental cars, making copies, testing and other services.
To motion that the other lawyer is not disqualified for the same switching sides with the expert, the case usually progresses forward with little or no issues. It important to ensure that no information exchanged dealt with the case from the original lawyer that hired the expert. Otherwise, the disqualification may stand and lead to further issues with the trial or claim.
Switching Sides and the ExpertThe expert witness may need to switch sides during criminal proceedings when he or she needs to explain the subject matter in a different way. This is often necessary for more complex or confusing cases. Other motions may arise during these processes, but the expert often is able to remain on the case as long as he or she does not provide an unfair advantage to the other legal team or give away details about the opposing lawyer’s strategy.
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.