In response to an earlier blog post titled Stealing or Strategizing: Locking Out Experts You Don’t Plan to Use, one of our experts wrote a comment posing the question, “What would the reactions be if I were to contact opposing counsel to offer my services? What are the ethics as long as I do not share confidential opinions and information? What is the law?”
In his comment, this expert wrote that he frequently realizes he can’t assist an attorney only hours after looking over the documentation. Although he would love to give his opinion, it would not be of any help to the attorney.
“I turn away about two of every three inquiries from attorneys because, after preliminary discussions, I must tell them, ‘I can’t help your client.’ After hanging up the phone, I think, ‘I wish the other side had called me instead,’” wrote the expert.
He asks a very important question. If you have already been contacted by counsel and you are unable to be of any help, what are your options in approaching opposing counsel?
Question of Credibility
Although there are no laws prohibiting an expert from reaching out to opposing counsel, there are serious repercussions to forming an opinion before being retained as an expert.
A fellow expert responded to the initial comment with the warning, “If you are ever asked how you came to be retained, you will have to state that YOU were the one who decided to seek out one of the sides from the get-go, instead of being asked to be an independent and an unbiased educator of the trier of fact.”
This is an issue because an attorney can use this information to question an expert’s credibility and later get the expert dismissed from the case. Rule 611(b) of the Federal Rules of Evidence addresses the scope of cross-examination and states that “cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” Because of this, attorneys often attempt to discredit an expert’s status as unbiased by showing that an expert formed an opinion before being retained and viewing all the proper documents.
In a situation a few years ago, an expert emailed an attorney with his thoughts on a case, what his preliminary opinion would be and his suggestions on how to move forward. Although the expert was well qualified and had an opinion in line with the case strategy, the attorney was forced to turn down the expert because he had not yet been retained and this communication would be liable to discovery.
Question of Ethics
Experts must also be very careful about trolling for cases.
The practical results of approaching opposing counsel can include a hit to an expert’s credibility and dismissal from a case. The ethical implications include gaining a reputation for hunting down cases.
After all, it is much better to be asked to serve on a case than to do the asking.
Tell us: Have you ever approached opposing counsel about a case? What were the results?