August 9, 2012

What Do You Do When Your Expert’s Opinion Disagrees with Your Trial Strategy?

A Federal Court judge warned Samsung on Wednesday to rethink its allegation that Apple improperly influenced its expert witnesses when Apple called a meeting to discuss changes in the expert’s report. (Apple lawyers pointed out what appeared to be a typographical error in the report, contends the expert. The complete story can be found here.)

In this case, expert tampering may not be an issue. But experts may often face pressure to amend their reports and this can present an ethical dilemma.

A client attorney may have an “answer” or prepared defense that he or she is hoping the expert opinion will  support. However, it is important for an expert to maintain independence and render an opinion without influence from the client. The expert’s testimony also has to stand up to cross examination in a trial or deposition, so the expert is obligated to render an independent opinion based on his or her expertise, regardless of the client’s trial strategy.

So, what happens when the hired expert reaches a different conclusion than the client had hoped for when hiring him/her?

Often, this means more work needs to be done. If the attorney’s theory does not hold up with his own expert, it most likely will not hold up in court. Modifying trial strategy may seem like a daunting task, especially if the trial date is looming.

Additional research or obtaining corroborating expert opinions can be costly and time consuming. In an ideal situation, information provided by the expert may lead to a minor re-tweaking of trial strategy or a subtle difference in approach only.

How do you handle an expert opinion that does not fit your strategy?

The CECON Group has been providing science and engineering expert witnesses to attorneys since 1985.

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