Replacing an Expert Witness Unexpectedly: What You Need to Know

The old adage in trial practice is that no party wants to face a surprise. Unfortunately, just as life can be unpredictable, the status of an expert’s availability can change unexpectedly.

Edward Maggio, J.D., M.S.

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— Updated on November 11, 2021

Replacing an Expert Witness Unexpectedly: What You Need to Know

Depending on the stage that trial has reached, the court may place serious restrictions on the replacement of an expert. Even worse, replacing an expert at the last minute can be stressful and expensive for an attorney. Knowing the unique challenges of replacing an expert and having a contingency plan can be key to prevailing under such circumstances.

When a Life Event Renders Your Expert Unavailable

An expert’s family emergency, sickness, or even sometimes their own death can leave you without a critical witness. Unfortunately, such events in life happen when least expected. While a court can be understanding to a point, the attorney needs to find a new expert as soon as possible.

To get the court’s approval (and to avoid conflict from the opposition), the testimony of the new expert must remain similar or the same as the previous expert. In addition, the replacement expert must be a professional with a similar educational background and work experience related to the subject matter at hand. Hopefully, the attorney has a backup expert from their previous work preparing for trial. However, in the case that there is no replacement expert on standby, an expert witness search service can connect attorneys with a custom-recruited expert with very tight turnaround times.

Disqualification: Conflict of Interest or Improper Credentials

Attorneys can reliably expect challenges against an expert by the opposition. However, it may be a surprise to have an expert deemed unable to testify. Imagine a situation prior to the start of a trial where the expert is disqualified because a challenge reveals the expert’s consulting firm was assisting the other side in a different case.

Let’s not forget that an expert’s education and work background can always be challenged. The opposition can challenge an expert’s stated qualifications as described in their resume and testimony. This includes learning of a revelation that their experience is not relevant to the case at hand. Depending on the severity of an issue, the judge may deem the request to replace the expert as a harmless act.

However, if the disqualified expert was lacking a certain scientific qualification, substituting an expert may not remain valid. Additional problems arise if the substitution of the expert could harm the defendant’s or the plaintiff’s case. In this case, the attorney may need to devise a backup plan. Professional experience and education are still important, and the new expert will need to pass the qualifications check with the judge and opposing lawyer just as the initial professional did.

Timing is Everything

When an unexpected situation occurs before trial, the opportunity to replace an expert witness is much easier. As trial commencement approaches, however, replacing an expert can be much different. In federal cases, in particular, Federal Rule of Civil Procedure 16(b) provides that a pretrial schedule, which includes deadlines for the parties to disclose their expert witnesses (deadlines that were passed in this case), “may be modified only for good cause and with the judge’s consent.” This means if an expert must be replaced, it is an uphill battle for an attorney to accomplish at that stage. Having a replacement expert available immediately can help secure the judge’s consent and minimize further challenges from the opposition.

Preparing for a Problem

Just as it is important to select the best experts for an upcoming trial, it is important to consider backup experts. This is true especially if an expert is key for establishing causation and damages. While it may seem like an uncomfortable discussion point, it is worth having a contingency plan. If, for example, establishing causation in a medical malpractice case hinges on one particular expert, the attorney should have an alternative plan of action in the case that the expert becomes unavailable.

Searching for a New Expert

A judge can grant permission to replace an expert before the trial officially starts or possibly during a trial. However, as stated previously, the attorney may need to perform a new rapid search. Such a search must be for a reliable and relevant expert. While searching for experts is often done in a hurry and with a large degree of stress upon the attorney, success is attainable. It also doesn’t have to be as stressful with the correct resources available.

In moments of potential crisis, having the best resources to find a new expert becomes paramount.  Consulting an experienced expert witness search service can help you find a new expert for the relevant subject matter when you’re under a tight deadline and in need of a niche expert.

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