I. INTRODUCTION -
Working with expert witnesses can be one of the most vexing aspects of a litigator’s job. The real or perceived need for expert testimony has grown to the point that experts are involved in many if not most civil cases being litigated today. Often, and understandably, experts do not know or fully understand the rules governing disclosure of their opinions, or discovery of their work, such as their collaboration with a party, its counsel, or others. And many experts are better analysts or technicians than they are writers or testifying witnesses. Consequently, in most instances experts have a genuine need counsel’s guidance and assistance as they work their way through the process of learning about a case, formulating their opinions, preparing a report and testifying.
While experts should always be independent both in appearance and in fact, in most instances it is unrealistic to expect their work to be completely independent. For the civil litigation processes to work appropriately and fairly, it is vital that counsel and experts be able to communicate and collaborate openly and honestly, without undue concern over discovery or disclosure that, even in an adversarial system, all too often serves no real purpose in the search for truth. In short, a properly-functioning system requires that counsel and their experts be free, within reasonable limitations consistent with professional ethics and integrity, to communicate with one another “off the record.”
Originally published at the OBA/CLE and OBA Litigation Section: Litigation and e-Discovery on October 3, 2013.
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