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Published Articles by David Balovich

Title: Experts Can Be Held Liable
Published in: Creditworhty News
Date: 2/7/01
An 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 participating in.

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 perjury.

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 "experts" client.

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 to provide.
  • 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 being offered.

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.)

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