April 30, 2019 Articles

What Do You Mean You’re Not Bringing Your Expert to Trial?

Can you call an opposing party’s expert in your case-in-chief, even if your opponent does not want to bring them to trial?

By Arturo J. González and Christopher L. Robinson

You just crushed your opponent’s expert at deposition, obtaining numerous damaging admissions that will affirmatively help your case. Your deposition went so well that you are starting to think about calling that expert in your case-in-chief. You’re already rehearsing your closing argument: “Even the other side’s expert agrees!”

But you’re also getting paranoid: “What if my opponent refuses to bring that expert to trial? What if that expert is outside the court’s subpoena power? Surely, I can call the other side’s expert in my case-in-chief by deposition at least—right?”

Not so fast. You’ll need to carefully research the law in your jurisdiction. When it comes to sorting through the possible outcomes, the Bluebook does not contain enough “See” and “But see” signals to accommodate the diversity of judicial viewpoints out there.

This article covers the main issues that you’ll want to consider with respect to federal law. (If your case is in state court, you should obviously consult state law authority in your forum.) In federal courts, outcomes differ significantly on whether you can call a “withdrawn” adverse expert as your witness, depending on what jurisdiction you’re in and whether the expert you want to call is within the trial court’s subpoena power.

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