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Can I Hire the Opponent’s Expert Witness Who Removed Himself from the Case?

Sometimes, a lawyer has the opportunity to hire the opposing expert witness for his or her case when the professional is no longer part of the process. However, these situations must involve certain circumstances before the expert may change lawyers that generally includes any lack of conflict of interest and knowledge of the opposing lawyer’s case.

Hiring the opponent legal team’s expert witness is often not even a remote possibility. This is due to conflict of interest, knowledge of the case and continued use of the expert even if he or she is no longer a designated expert. However, if few or no constraints exist, the legal defense or plaintiff may hire the other expert witness to help explain or provide support to a claim. The judge may still remove the expert from the case entirely, but there are some situations that may ensure the event proceeds with little or no complication. It is important to communicate with the everyone involved to prevent any further problems.

Using the Expert as a Consultant

Sometimes, if the opposing side is not able to make use of the expert due to disqualification, the lawyer may hire him or her as a consultant to find a new expert. The consultant may also explain
and corroborate studies and testing methods of other experts. The professional may also provide the legal team with a better understanding of the opposing legal team’s new expert witness. He or she may point the lawyer or client towards answers or in refuting the expert’s scientific findings. Some professionals masquerade as experts when they do not possess the correct qualifications and credentials.

Conflicts to Avoid

Because cases involve several factors, if a lawyer wants to hire the expert witness from the opposing legal counsel, he or she must avoid conflicts of interest. If the expert was part of the case before leaving, he or she would have prior knowledge of what the legal team would implement in the courtroom. Any conflict of interest could remove the expert from the case entirely.

However, some judges may permit the expert’s new hire if the professional’s conflict of interest does not apply to the new processes. This is possible if the expert was previously hired for reconstructing an auto accident but then will need to provide testimony about medical problems and injuries with no connection to the auto accident scene.

An expert should not remain on a case on either side if he or she may become or remain biased about certain aspects of the case. This is possible if there is a personal connection to the client, lawyer or other professional. Bias also exists if the expert has personal experience with the subject matter in his or her life which may skew his or her testimony against the other side. He or she must remain objective without campaigning for the lawyer that hired him or her. Avoiding conflict in various ways is usually the only way to remain on the case after hire.

Consulting with the Judge

Because the trial either has already begun, or the lawyers are still determining which experts are necessary for the case, the legal representative may need to consult with the judge about using an expert that the opposing legal team no longer as on hire. The judge may determine that the expert is not eligible as a designated expert witness, or he or she may give the lawyer the chance to hire the professional for the case provided there are no conflicts of interest at play. With the judge’s permission, the matter may have fewer complications.

Because the judge has the last word on which experts may remain in the case, the expert from the opposing legal team may need to run through his or her qualifications before the judge and the other lawyer again to remain as a designated expert witness. Passing any factors that relate to a Daubert Challenge, the expert may remain on the case barring any other conflict of interest.

The Expert Reclaimed in a Case

Experts that were already in the case through the opposing legal team may understand the subject matter. However, some judges may place certain restrictions on the expert such as no new opinion outside of the subject matter. Testing may also face restrictions along with testimony. Other matters may remain inadmissible along with any relevant knowledge of what the opposing legal team may present within the courtroom.

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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.

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