Legal Question in Civil Litigation in California

A civil lawsuit pending before a State of California Superior Court. Defense counsel declares an expert witness per the California Code of Civil Procedure, Sec. 2034.260. (1) The declared expert witness has not been retained by the declaring attorney; (2) Upon receiving declaration, plaintiff�s counsel subpoenas expert witness for deposition; (3) The expert witness has not been any given access to the case files, has not yet formed any opinions, and has not been asked if they are willing to testify. The practice outlined, above, is sometimes called �using a ghost (or, phantom) expert,' or simply 'DWP' (declaring without permission). A handful of attorneys may use this tactic for any of the following reasons: (1) The declaring attorney is short of funds and hopes this breach will go unnoticed; (2) The declaring attorney believes that the expert's name/reputation might be enough to motivate a settlement; (3) The attorney knows that by submitting the declaration, that opposing council may not retain the same expert for their side. Also, the declaring attorney was deceitful when asserting in their declaration - what the expert witness is expected to say. What actions, if any, would you suggest this blindsided expert witness take? Furthermore, if the declaring attorney�s case ends up being �frivolous,� the expert witness whose name/reputation is wrongfully attributed to this case, could end up in the same mudhole. Comments are welcome.

Asked on 10/09/09, 3:49 pm

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The expert witness will be excluded unless the attorney declaration states that the witness HAS been retained. Contact me directly.

Answered on 10/09/09, 5:49 pm

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