Legal Question in Civil Litigation in California

Re: Expert Witness

If you've already given a deposition, it may not be possible to extricate yourself, as the other side may involuntarily subpoena you as a trial witness if they liked what you had to say. So, you may as well suck it up this time and get paid your hourly rate for the time.

Do you have a written agreement that obligates you to participate further?

One final thought is that if you do back out, you may find it difficult to get expert witness work in the future, as attorneys' opinions about expert witnesses spread very quickly on e-mail listservs.

Re: Expert Witness

Being an expert witness is tough -- especially the first time. I happen to know a *very* renowned scientist who recently was deposed as an expert for the first time. My scientist friend has the kind of credentials that would floor most people, and he has a real gift for explaining complex concepts clearly. Given that he was being deposed about a question well within his expertise, I would have expected him to handle the depo in stride and I would have expected the attorney deposing him to be a nervous wreck. In fact, it was quite the opposite -- simply because the experience was so new to him. My point is that your reaction to the deposition is quite normal and youy should not let it affect you too much.

Backing out, if that is what you decide to do, will potentially cost you a great deal. You contracted (either orally or in writing) with this attorney to be his expert at trial, and if you do not cooperate you will be in breach of the contract. You will then be responsible for all the costs foreseeably arising out of your breach, which may be astronomical. For example, if his clients would win a million dollars with your testimony but lose without it, you will potentially be on the hook for a million dollars. Worse yet, they might sue him for malpractice as a result of your breach and he could then sue you to pay not only the damages he is required to pay out but also to reimburse him for his attorney fees defending that lawsuit.

Part of the problem is that your change of heart may have come too late to correct. It may be that, if the trial date is coming up soon, it is too late to properly designate another expert to take your place. Some judges will not allow a delay in situations like this, and if your testimony is critical it is possible that your actions will cost his clients their case.

Even if there is still time to replace you and an adequate substitute can be found, replacing you will cost money and you will likely have to reimburse the lawyer for those funds. The new expert may charge more than you, for example, and the other side will expect to be reimbursed for the added costs and attorney fees involved in reading the new expert's reports and taking his deposition. At the same time, your friend will have to perform additional work and you will be on the hook for his added fees. Even this limited exposure would be considerable in most cases.

Of course, the specifics of your situation might lead me to predict a less dire outcome. In general, though, experts who back out after they have been designated and deposed face some serious risks. You might want to re-think your position very carefully here, and first I strongly urge you to have a detailed consultation with a qualified attorney.