acquaintance recently contacted me to announce he had acquired
certification as an expert witness through NACM and to ask if I had
any advice I could pass on. Upon congratulating him on his
accomplishment, I suggested among other things he look into acquiring
liability, often known as errors & omissions, insurance.
"What"! he exclaimed "Do you mean I can be sued"?
Unfortunately, the answer is yes. When I began providing services
as an expert witness over twenty years ago, the expert witness was
looked upon as a "friend of the court." Professionals
willing to take time away from their occupation to participate in the
judicial process. However, many of us discovered that being an expert
witness could be more lucrative then our chosen field of endeavor and
we became known as "hired guns" with absolute immunity from
civil liability for anything we said on the witness stand, in
deposition or in our writings concerning the case we were
Over the past fifteen years though there has come into play
something referred to as expert witness malpractice. Prior to this
there was virtually nothing anyone could do to hold expert witnesses
accountable for the consequences of their testimony short of the risk
of professional sanctions or threat of criminal prosecution for
The idea behind expert witness malpractice is that when
"experts" with specialized knowledge or training breech
their responsibilities in order to satisfy their clients objectives
then grounds exist for a cause of action by a person who has been
damaged by expert testimony. This may also include the
Since 1982, eight states have addressed the issue of expert witness
immunity and according to the American Bar Association the law has
been moving in the direction of holding "friendly experts"
liable for their professional errors ever since. The eight states
being California, Connecticut, Louisiana, Missouri, New Jersey,
Pennsylvania, Texas, & Washington.
Along with insurance I also suggested to my shocked acquaintance
the following when working as an expert witness:
- Understand fully the scope of the testimony you are being asked
- Never stray beyond the scope of the assignment.
- Try to avoid opinions and concentrate on facts.
- If you have to provide an opinion support it with established
facts and if possible cite sources.
- If responding, in writing, to another experts' opinion cite
sources as the basis for your position.
- If you have difficulty with the position you are being asked to
support, turn down the assignment regardless of how much money is
I wish you well.
(David Balovich first began serving as an expert witness in 1980.
Since then he has provided written opinions and depositions in several
cases in the area of credit & collection practices to law firms
throughout North America.)