October 4, 2012

Do You Disclose Case Docs to Potential Experts?

I recently gave a CLE course at the Philadelphia Law Library on Ethical Practices for Hiring and Managing Expert Witnesses.  One of the topics discussed was whether or not one provides case documents to an expert witness candidate before hiring, which sparked an interesting discussion.

A significant percent of CECON’s clients are law firms requiring technical experts.   While our non-legal clients do a good job in screening candidate consultants before they decide to engage them, I think it’s fair to say that our legal clients typically spend more time and diligence in vetting their potential expert witnesses. 
During an interview, the perfunctory details of the case and the parties are disclosed, with potential conflicts being explored.  The interviewing lawyer also probes for how the expert sees the case, hoping to get a sense if the expert is aligned with the arguments the lawyer is preparing. 

Once the lawyer feels s/he has found a qualified candidate, we see two paths that our clients can take:
A) Proceed with more verbal discussions of the case and make a decision then on engagement, or
B) Decide to send the candidate some files from the case (under a non-disclosure agreement) to provide more insight and let the candidate make a more informed preliminary opinion.  
Which path is “correct” or preferred raised a fair number of comments and insights into attorneys' methodologies and experience.

One group preferred Path A, which is certainly the cleaner and less risky approach, since no confidential information is released.  For them there would never be enough reason to disclose any confidential information before engaging the expert. 

Those preferring Path B stated that, in some cases (e.g. pharmaceutical), there is so much technical information to consider that a candidate cannot do justice even to form a preliminary opinion without better understanding some of the facts.  Path B burdens the lawyer with what information to send, since it would be impractical to send it all (and an unfair request of the expert’s uncompensated time), and it must be representative and balanced.  Path B may also be taken if the lawyer is not familiar or knowledgeable with all of the potential technical nuances of the case.     
Which path do you typically choose, and do you ever see Path B as a possibility?    

The author, Mike Fisher, is President of the CECON Group, a science and engineering consulting firm. 

                                                            

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