Steven Babitsky, Esq.

Expert witnesses of all specialties will occasionally get a call from a plaintiff (or defendant) in a case who wants to hire them directly.

Represented by Counsel

The first thing that the expert should determine is whether the client is represented by counsel. If the plaintiff is represented by counsel and is shopping around for an expert, the questions is why? The most likely explanation is that counsel has told his client that he needs to find an expert witness to proceed. This may be because counsel has been unable to locate an expert willing to accept the case. Alternatively, counsel may want the client to pay for the expert witness. Whichever the reason, it is not a good idea to accept such a case. Most experts will ask the client to have counsel contact them directly. If this fails, they will likely not accept the case due to the awkward nature of such an assignment.

Plaintiff Not Represented by Counsel

In these cases, the plaintiff (or defendant) is pursuing the case pro se. There are many reasons for an expert witness to decline these assignments. These reasons include:

• Failure to get paid
• Unrealistic expectations of the client
• The inexperience of the plaintiff litigant
• The lack of ethical restraints on the client
• The likelihood that the case will not be presented properly, and this will reflect poorly on the expert witness

Conclusion

It has been my experience in working with and for expert witnesses for over 30 years that they are better served by declining to take a case in which the plaintiff/defendant is trying to hire them directly. For expert witnesses, the “best case” is often the one not accepted.

Steven Babitsky, Esq. is the President of SEAK, Inc. the Expert Witness Training Company.