Friday, August 5, 2011

Hiring Experts You Don't Plan to Use

Here's a cautionary tale for expert witnesses from IMS Expert Services: "Do lawyers ever retain experts just to lock them out from being hired by the other side? If so, is the tactic fair play in the hardball game of litigation? Or are lawyers who would do this, as one court suggested, short on scruples?

Ask either lawyers or experts whether they see this done and their answers range from "often" to "never." Ask them whether they approve of the practice and their answers vary just as widely. But ask lawyers whether they do it themselves and no one's hand goes up.

"Lawyers do occasionally contact or 'retain' experts solely to disqualify them from working for the other side," says Erik Anderson, senior attorney in the corporate legal department of Safeco Insurance Company of America. He should know: he faced this situation in a case not long ago in which one party sought to disqualify the other's expert.

Another lawyer who has seen it done is David W. White, a trial attorney in Boston who is also president of the Massachusetts Bar Association. Although he would never do it himself, he once found himself the victim of this tactic.

"It was an antiques case, where fraud was alleged," White says. "There wasn’t an available independent expert on the east coast of the U.S. because the plaintiff had consulted them all."

This tactic of "locking out" experts occurs most commonly in either of two scenarios, lawyers and experts agree. Either the field is highly specialized and there is a limited pool of qualified experts or the expert is so uniquely distinguished that he or she is highly sought after.

Consider Werner Engelmaier, for example. He is one of only a handful of experts who specialize in the design, manufacturing and reliability of electronic packaging. When he first became an expert witness, colleagues warned him of the practice. And then something similar happened to him.

"The law firm contacted me and made disclosures to me about the case before ever retaining me," he says. "They never did retain me, but they had disclosed so much that I had to recuse myself from working with anyone else in the case."

Ever since, Engelmaier has structured his retainer agreement in a manner designed to insulate himself from similar taints. He requires a steep retainer, $10,000, and blocks potential clients from disclosing anything about the case to him until the retainer is paid.

If the client retains him, then once his billing exceeds $10,000, he returns the retainer. Of course, if the client does not retain him, he refunds the retainer. "This serves to discourage preemptive disclosures that would disqualify me from the case," he says.

Click here to read the whole article.


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