Surprises during litigation can be devastating. Unfortunately, unforeseen circumstances arise, and sometimes a retained expert must be replaced. The party adversely affected by these unwelcome developments often takes a financial hit and suffers from elevated stress levels. These consequences can be amplified if restrictions on replacing the expert are established by the court. In order to overcome these challenges, attorneys will often take a preemptive approach and establish a backup plan should an expert need to be replaced last minute. For instance, they may hire a consulting expert to work with their testifying expert.
The challenges associated with replacing an expert witness escalate as the trial date approaches. The contingency plan becomes much more difficult to successfully carry out when the trial is already underway. Federal Rule of Civil Procedure 16(b) maintains that pretrial schedules, including expert witness disclosure deadlines, “may be modified only for good cause and with the judge’s consent.”
In order to reduce these obstacles, attorneys should consider retaining a replacement expert (who may also assist the current expert with casework) to be available should the need for their assistance arise. This concept of the “understudy” is common practice even for high school plays where there are not millions of dollars at stake, and is highly recommended when engaging expert witnesses. Ideally, the understudy would be engaged at the same time as the primary expert, so that he/she is in the loop on all aspects of the dispute and can even lend additional expertise on the topic.
If an “understudy” is not practical financially, then having a replacement with immediate availability and knowledge of work performed on the matter improves the odds of obtaining consent from the judge. Once the replacement is approved by the judge, other challenges present themselves including the small window of time to prepare the new expert, as well as less time for discovery. On the plus side, approval often means that the chances of success are higher as the replacement is green-lit, and the new expert is able to step in and complete the expert’s work.
As soon as pre-trial approval for the replacement of an expert is granted by the judge, the legal team will need to conduct a search for the new expert. As the expert’s reliability is extremely important here, many lawyers turn to expert witness search firms that already have a strong roster of seasoned experts at the ready.
The same requirements will exist for the new expert, including a qualifications challenge by the opposing legal team and judge. In some situations, the change of experts will result in a limited scope in testimony from the replacement expert. Additionally, the report provided by the new expert will need to align with the old expert’s report, as no contradictions or opposing views between the two experts’ reports will be permitted. If the new expert’s findings lack consistency when weighed against the previous expert’s findings, these new findings may be deemed inadmissible.
Richard Waldinger, a Senior Manager of Expert Witness Services here at Round Table Group, recently led a search in which the retained expert needed to be replaced with very little notice. “The law firm retained an expert who suffered the tragic death of an immediate family member during the last stages of the execution of contracts. The client was very sympathetic and wanted to let the expert decide whether to take on the engagement. After agreeing to work together, several months went by and the expert appeared to be in over his head. It was unclear if this was related to the expert’s grief but, regardless of the reason, the client needed a replacement expert immediately.” explained Richard.
Richard suggested that the attorneys schedule calls with all three of the other expert candidates that were initially presented to the client during the earlier stages of the expert search process. “There was some good fortune involved in that the replacement expert was available, was still interested, and had reasonable rates; but the overall best practice I believe I brought to this situation is that I maintained good ongoing relations both with the clients and experts and was above-board with them regarding the situation. At the time of the original retention, I told the other candidates in a timely fashion that the client had selected someone else. Then, when I reached out to them again, I was up front that the clients needed additional assistance. Most importantly, I did not waste the replacement candidates’ time by using the shotgun approach, but instead methodically reached out and set up calls.”
Richard provides some further insight on how to best approach the last-minute replacement of an expert: “The most important thing, in my opinion, is for the case manager to put him/herself in the positions of both the client and the replacement candidate, so we are treating their needs and time as respectfully as possible.”
There may be many reasons for the replacement of an expert witness. Despite the stress associated with this process, it is important to go about it methodically, rather than full “fire drill”. When we assist our clients with the last-minute replacement of an expert, we recommend this approach in order to ensure that the replacement is successful.
If you find yourself needing a sudden replacement, remember that there are resources available to assist. Our team of professionals have over 25 years of experience finding expert witnesses in thousands of specialties to match our clients’ needs, often on very short time frames. Call us at (202) 908-4500. It would be our pleasure to assist.