Bar Bulletin

August, 2004

How Independent is Your Expert Witness?
By Larry M. Epstein

It may be detrimental to an expert witness’s credibility if even the appearance of a lack of independence exists. In today’s legal environment, discrediting an expert based on his or her relationship with counsel, the client or the judge is common. Let’s examine how to identify an expert’s independence.

Standard Procedures to Identify Independence
Consider the following four procedures to verify your expert’s independence:

  1. Ask the expert to contact all members of his or her firm to make certain that no member has potentially problematic relationships with any party involved in the case. These relationships may include:
    - Financial, such as partners in other businesses,
    - Family, either directly or by law and
    - Any close personal relationships.
     

  2. Avoid billing relationships that are not your expert’s standard practice. These may include premium billing rates or fixed-fee retainers regardless of actual time spent.
     

  3. Identify previous services provided to any party in interest.
     

  4. Keep in mind that if your expert typically represents only one side of an issue, he or she may lack independence. For instance, an expert who works only for plaintiffs or only for spouses employed outside the home could present the appearance of a lack of independence.

Naturally, the larger the firm the more difficult is the task of proving independence. And in smaller markets independence just may not be possible. But procedures should be in place to identify potential issues.

Even if the expert has determined that he or she has no conflict of interest, the expert should disclose to you all relationships, past and present, with all parties that might appear to affect independence.

Turn an Expert Into a Consultant
What if your potential expert witness has great credentials but is not independent from your client? Consider using him or her as a consultant and finding another expert witness.

Using a consultant in addition to testifying experts gives you many advantages. As a consultant, the professional is free to act as an advocate for you and your client and to work actively toward a winning solution for your side. As an advocate, the consultant can pursue options that can provide better results for your client and determine a strategy for achieving those results. Yet a consultant’s services to an attorney are protected by privilege and work product.

With a financial advocate on the litigation team, the outcome of the case can provide positive results.

Can Your Expert Witness Pass the Independence Test?
Ultimately, you must decide whether a conflict of interest or an independence issue exists that may affect your ability to use the expert in court. A little protection up front can help you avoid serious repercussions down the road.

Larry M. Epstein, MS, CPA, CVA, is a partner at Hertzbach & Company, P.A., a regional CPA & business consulting firm. He also serves as director of the firm’s Litigation Consulting Group.

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Publications : Bar Bulletin: August, 2004

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