Court Analyzes the Risk of Selecting a Lawyer as a Testifying Expert

March 22, 2006

Most federal courts require testifying experts to disclose all documents they reviewed before testifying. This rule sometimes snares lawyers who provide their opinion work product to testifying experts ‑‑ but picking a former lawyer as a testifying expert involves even greater risks.

In American Steamship Owners Mutual Protection & Indemnity Ass’n, Inc. v. Alcoa Steamship Co., No. 04 Civ. 4309 (LAK) (JCF) 2006 U.S. Dist. LEXIS 3078 (S.D.N.Y. Jan. 26, 2006), plaintiff designated as a rebuttal expert witness one of its former lawyers. The defendant sought the disclosure of a privileged document (dealing with the same issue) that the expert had received several years earlier, while acting as the plaintiff’s “legal consultant.” Id. at *6. The expert argued that he had not read the document since then, and would not review it in connection with his expert testimony. However, the court explained that “[i]t is unlikely that an expert can cast from his mind knowledge relevant to the issue on which he is asked to opine, merely because he learned it prior to receiving his assignment.” Id. at *9.

In a footnote, the court provided a warning that all lawyers should heed ‑‑ noting that the plaintiff “could have avoided this result by choosing an expert with whom it had no prior relationship and then being circumspect in choosing what documents to provide for the expert’s review.” Id. at *9 n.1.