Avoiding Disqualification of Expert Witnesses from Conflict of Interest

What Is a Conflict of Interest with an Expert Witness?

Some professionals become involved in a case where the individual already has knowledge of the other legal team’s case. In these situations, the expert may face disqualification because of the already existing conflict of interest. In these circumstances, the professional may have worked with the other lawyer before or have a working or personal relationship with someone on the team. This conflict may also occur if the lawyer communicates or directly speaks with the expert in some manner that reveals the information about the case or the legal strategy. Even if the expert does not use the details, this still creates a conflict of interest.

The Rarity of Disqualification for a Conflict of Interest

While some existing or new conflict may occur with the interests of the expert witness such

as understanding what the legal team will do, knowledge of the case above what the professional already has or a new relationship with the opposing legal team, it is rare for a judge to disqualify the expert for this conflict. If there is sufficient concern that the conflict of interest could involve a breach of confidentiality or cause a change in the conclusion of the case, the expert may face the disqualification quickly. It is crucial to limit the possibility of exposure that could lead to the conflict itself.

Communication with the Lawyer

Some conflict arises through communicating with the other lawyer. Sometimes, this may occur to understand the subject matter or when the expert knows the legal professional. Other circumstances arise when the lawyer wants to either interfere with the case or attempt to gain new insights. If the judge deems the matter severe, he or she may disqualify both the expert and the lawyer from the case. Other cases may only remove the expert and any testing, testimony or assistance he or she gave for the materials and evidence. Then, the professional may become a consultant or leave the case entirely.

The Types of Conflict of Interest

Communication with the expert witness during the trial or civil case could disqualify the expert. This is a common form of conflict of interest. It is in these situations where the lawyer may also face the same consequence depending on the amount of communication and how the contact occurs. If the lawyer attempts to deceive or initiate contact for acquiring the expert, this could change the end result based on the factors of the communication. This is similar to another situation where the expert agrees to a retention contract with one lawyer after already working for the opposing lawyer in a previous case.

Another situation that could lead to the disqualification is when the expert witness has contact, either in the past or currently, with the opposing legal team or someone observed as an adversary while at a trial case. In these situations, the opposing lawyer or another party may object to the use of the expert witness in the case. This could happen with the client, with a defendant or plaintiff in civil litigation or another party that has some involvement in the proceedings such as another expert or witness. Then, the professional may need to defend against the charges of disqualification.

Defending Against Disqualification

The burden of proving that he or she does not have a conflict of interest is on the shoulders of the expert witness. Communications between parties are not confidential. The person objecting to or petitioning for the disqualification may need to point to the specific information and disclosure of details between the lawyer and the expert witness. There must exist a reasonable basis for a confidential association between the two parties to occur.

If the burden of proof is met by the expert witness, this burden then changes to the party that opposes the motion to disqualify the expert. He or she must prove that no confidential association existed. The expert may no longer need to face disqualification in these situations. There are numerous defenses against the disqualification such as a motion not raised in time. These may provide a means of success.

Provided by HG.org

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Disclaimer: 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.