Expert Witness Checklist: Am I Conflicted?

Checking for conflicts is a complicated part of deciding whether a matter is right for you.

Some conflicts are easy: If you’ve previously worked for a party in the matter, you are conflicted. Some conflicts are harder: What if a company sponsored an event where you gave a talk? What if your neighbor is an executive of the opposing side or the side you are representing? 

Be Thorough in Your Conflict Check

Jean Acevedo notes it’s best to be thorough in your check:  

I have only turned down one or two [cases] and that was because I had a conflict. So, for anybody starting as an expert, it is important to realize if you have a personal or professional relationship with either plaintiff or the defense. That is in my mind because I am strict about the ethics of this. Even vaguely related it would be difficult to be an objective expert because I do think besides being a subject matter expert, right?  

Charles “Chuck” Ehrlich remembers, during his time when he was primarily an attorney (he now works mostly as an expert), when an expert did not do a good check:  

Let me go back even before when I was an expert when we were hiring an expert and I think the first thing to start worrying about is conflicts. We had a case when I was working in the insurance industry, and we hired an expert who was the number one expert in the whole world on this particular subject. And I almost did not get a motion in from the other side to disqualify us as counsel or disqualify our council on the basis that we had hired the other side’s expert. This expert had not properly checked conflicts. They were just happy to take on our case and happy to sign us on and did not realize that he was already retained by the other side.   

Furthermore, Chuck reminds experts that sometimes you need to stop the attorney from giving you confidential information until you’ve performed the check. Attorneys sometimes get going on describing a matter to you before you’ve had a chance to clear conflicts: 

 I am amazed as an expert now, how many lawyers will call me up and say, ‘Hi, you know, Michelle gave me your name, and here is my case.’ They start talking away about their case and I have to say, ‘Wait, stop, stop, do not say a word. Who is involved here? Who is your client? Who is your opponent?’ I might have some involvement with one of those parties. I also have to immediately start Googling because they say, well, my client is the mom-and-pop insurance company. Great, I have never heard of the mom-and-pop insurance company, no problem. What if the mom-and-pop insurance company is owned by ‘Giant Conglomerate, Inc.,’ for which I am doing some work? Or in a case where I am serving as an arbitrator? Before you even start doing anything as an expert, you must check for conflicts or [you can] get yourself in a potentially disagreeable situation, to say the least.  

Dr. Douglas Kalman notes that even the perception of a conflict can cause problems:  

I will give one example. Two companies have been suing each other for the last couple of years. It happens I guess in every industry. This one is the beverage industry. Both sides have reached out to us multiple times. ‘Can you be an expert for us?’ Each time, we say ‘No,’ and they ask, ‘Why?’ I said, ‘Well, there is a perception of a potential conflict of interest because as an individual I was at the wedding of somebody that works for one of these parties. Therefore, there is a perception of conflict.’ I would rather not get involved, especially when both sides are asking us. It is not like you are going to get into a bidding war to sign a baseball contract. That is different, but you need to be upfront because the lawyers and law firms you work with do not want to be caught by surprise by anything during the discovery phase or other aspects of the case. 

When in doubt about a conflict, the best practice is to bring it to the attention of the attorney who is considering working with you (or, if discovered later, the attorney you are working with) so that they may make the call. 

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