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Expert Witnesses

Replacing an Expert Witness before Trial

When there is a problem with an expert witness such as a conflict of interest or he or she loses qualification as a designated expert witness in the case, the professional’s replacement must occur. This could happen with the previous expert as a consultant to assist in discovering the next best fit for the case in the courtroom before the trial begins.

For a lawyer to replace an expert witness before the trial starts, he or she may face difficulty. However, this situation is significantly better than starting the trial case and then replacing the professional. Additionally, if one expert is no longer qualified as a designated expert for the case, this professional may provide consultant advice in finding a new expert to take his or her place. This could provide invaluable support so that the next expert may remain for the duration of the entire trial when his or her expertise and knowledge become necessary. It is essential to ensure the new expert is up to date on the case details.

Replacing Due to Federal Rule of Civil Procedure

Some judges in a trial may provide the opportunity to substitute an expert witness when the previous professional could not attend the proceedings and is no longer part
of the process. The request to substitute one expert for another is possible through altering the scheduling order which may also enlarge the discovery period. When the courts find there is good cause for the process, the judge may give enough time for a new expert’s hire. However, it is important to bring forth the information about needing to hire a new expert as soon as possible.

The Search for a New Expert

When the courts and judge provide the opportunity to replace an expert before the trail officially starts, the lawyer may need to perform a new search for a reliable and relevant expert. This could require the services of an agency that hires out experts to lawyers for cases based on the subject matter. Another situation may involve an internet search for an expert that lives in the area. Professional experience and education are still important, and the new expert will need to pass the qualifications check with the judge and opposing lawyer just as the initial professional did.

No matter which expert becomes part of the case as a substitution, he or she may have limited scope in testimony based on the change. The court may minimize what the expert may accomplish based on what his or her predecessor was given. The new report about the case subject matter may not contain anything that contradicts or is in opposition to the previously held opinion of the expert prior to the trial beginning. The substitution requires the expert to have consistent opinions and findings as the professional no longer part of the case. Anything else or in addition to this may become and remain inadmissible.

The Restrictions and Complications

Because a lawyer does not have the same option to replace the expert before the trial progresses to the next stage, the restrictions may cause possible problems. The legal representative will need to ensure testimony remains similar or the same as the previous expert in addition to finding someone with a similar background. Even if the expert’s testing may reveal additional details, these may remain inadmissible due to the limitations placed on the substitution of a professional. Other complications arise through extensions in time and halting the progress of the current situations in the case. This could provide additional time to the opposing legal team as well.

Some issues exist in whether the judge deems the substitution a harmless act or if it is substantially justified based on the claim or case. If the expert that left or became disqualified covers an area that does not have a scientific background, substituting an expert may not remain valid. Additional problems arise if the substitution of the expert could harm the defendant or plaintiff’s case. The judge could deny the motion if it does adversely affect the opposite party. Then, the lawyer may need to rethink what to do in these circumstances.

The Change Before the Trial

If the judge approves the substitution, the lawyer may have little time to catch the new professional up on the details. This may hurry the processes further along with less time to discover anything new or pertinent to the case or claim. However, when approved, the substitution may provide a better chance at success.

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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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