Strategies to Disqualify Opponent's Expert Witness

It may be possible to disqualify the professional if he or she has a conflict of interest in the case, does not have the necessary relevance to the claim or does not use reliable methods of determining connections with evidence or other processes. Additionally, the lawyer is left to the judgment of the judge for a disqualification to become part of the proceedings.

For a judge to consider disqualifying an expert witness, it is the last resort that may not occur unless something drastic is involved with the case. It is usually only necessary when the expert is not credible through his or her own qualifications or he or she could be the subject of a Daubert challenge. However, a conflict of interest may be included such as when the expert is a former employee of the client, lawyer or other expert witness. If he or she is not ethically performing to the best

of his or her ability, it could harm the opposing counsel’s case. This means the obligation set forth by the lawyer to represent his or her client for the most effective litigation possible is hampered.

Disqualifying Factors

If the expert witness is unable to qualify due to his or her credentials, it is easy to disqualify him or her. However, there are other ways to do so as well to include when he or she is not complying with state and local laws. It may be important to review these to ensure the opposing expert is in compliance. This could be with the discovery process, with processes that may be against local regulations or similar concerns. It is vital that the lawyer is aware of these issues so that he or she may try to remove the expert from being able to apply his or her testimony to the case.

Conflicts of interest are easier to discover than other aspects that may not be revealed until after a case has long been decided. This is possible when the expert has changed from the defendant to the plaintiff’s side. If he or she was part of the proceedings and qualified for the one side, he or she could take information from the initial party to the other and increase the chances of success. However, this is a great conflict of interest. For a judge to consider disqualifying the professional, there must have been a confidential relationship in existence with the legal party and the expert, and the lawyer did disclose any information that was considered confidential.

Disqualifying the Expert Witness

No matter which option is taken to attempt to disqualify the opposing expert witness, the lawyer must know that the judge is open to do so in the court room. If the judge is not receptive to the process, it becomes must more difficult to remove the professional from the case. This means that it may take an excessive amount of evidence to back up the claim that the expert is not fit to remain part of the case due to credibility, relevance, reliability or a conflict of interest. After the data has been gathered and all possible issues have been discovered, it is important to speak with the judge about the problem.

However, even if the expert witness has been disqualified, he or she may still remain in an advisory capacity to the opposing counsel so that he or she may choose another expert witness for the case. This may occur behind the scenes where the previously used professional is not even in the court room. However, his or her testimony would not be included in the case, and the disqualification worked. This is usually the method of last resort due to judges not wanting to complete the process. However, if there is a conflict of interest or the expert cannot succeed against a Daubert challenge, it is the duty of the court to ensure the expert’s testimony is not included.

Strategies of the Lawyer

The lawyer hired for the case may choose one of various different strategies to employ to disqualify an expert. However, whichever course he or she has decided upon, he or she must ensure there is enough evidence that a judge cannot overlook it. It may be easier to disqualify someone based on credentials or relevance to the case.

Provided by HG.org

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.