Although the recent changes to Rule 26 of the Federal Rules of Civil Procedure were in part meant to eliminate the practice of hiring both a consulting and a testifying expert, attorneys still frequently engage multiple experts for the same case.
In addition to the continued concerns regarding discovery, there are a number of other reasons to ensure your experts never meet.
When Your Own Experts Disagree
What happens when a testifying expert looks at a consulting expert’s work and proclaims, "I can't use this! The analysis is flawed because of X, Y and Z"?
That was the situation an expert found himself in a few years ago. He was asked by an attorney to incorporate the faulty work of an earlier expert into his analysis, and it was suggested his testimony should mirror the earlier expert's findings.
Without the option of presenting independent findings, the expert was forced to turn down the case and the attorney was left without an expert.
Corporate defense attorney Andrew C. Simpson says that in this type of situation, he “would use this as an opportunity to build the testifying expert's credibility.” Instead of demanding a similar product, he would use the expert’s independent analysis.
“I would expect the testifying expert to explain what errors the consulting expert made and explain why the testifying expert's opinion is more reliable because of this conclusion," said Simpson. If this situation arises, you should use the tactic of pointing out that your testifying expert is so independent that she was willing to criticize your consulting expert, therefore increasing her credibility.
He Said, She Said and Hearsay
In the situation above, the expert was expected to base his report on the hearsay of another expert. Because of situations like that one, it is difficult to get hearsay evidence admitted in court. Not impossible, just difficult.
"The expert's reliance upon that hearsay does not establish the foundational fact established by the hearsay," Simpson explains. "You still have to prove that foundational fact, which is probably going to cause you to put the consulting expert on the stand."
Again, allowing the second expert to perform their own independent analysis saves you from the dilemma of establishing hearsay.
Keeping Experts Independent
By preventing your experts from meeting or seeing each other’s work, you can save yourself from the misfortune of having your experts disagree, facing the dilemma of admitting hearsay or having your expert’s work discovered.
This article was taken, in part, from the article, "When Your Own Experts Disagree" by Robert Ambrogi
Tell us: Have you ever experienced negative repercussions from having experts view each other's work?