There are several advantages to retaining a professor as a testifying expert. Often, professors are among the most knowledgeable in their fields. And some fact finders may perceive academics as more objective than consultants who work in industry. Unique challenges can arise, however, when you use a professor as an expert witness.
Before retaining a professor as a testifying expert, consider issues of prior statements, conflicts, and research assistants.
- Prior statements. In addition to reviewing all of the professor’s prior testimony, declarations, and affidavits, review her published writings and public statements (e.g., speeches, news articles, or podcast appearances) to determine if they reflect opinions that could undermine your case. A professor may not remember everything that she has written or said over time. You should therefore review the materials yourself rather than trusting the professor’s memory.
- Conflicts. Particularly where the case is high-profile and/or involves hot-button issues, the professor might encounter institutional pressures that could impact her ability or desire to complete the expert witness engagement. For example, the professor may face tension or criticism from her colleagues, her students, university administrators, or the media as a result of her expert opinions. Moreover, offering controversial expert opinions could jeopardize grant funding, a tenure application, or future chances of publication.
Consider whether these pressures could influence the professor and result in watered-down opinions or the professor’s abandonment of the engagement. Most importantly, make sure the professor thinks about these scenarios before committing to the engagement and is comfortable with the potential consequences.
- Research assistants. To the extent that an expert’s opinion depends on testing or analysis performed by a research assistant, the research assistant could be subject to cross-examination. Determine whether the professor intends to use research assistants in the engagement—and if so, who they are, what their qualifications are, and what they will be doing. Vet these individuals (who are frequently graduate students) for potential conflicts just like you vet the professor.
Considerations During the Engagement
During the engagement, consider issues of case management and documents/communications.
- Case management. Because professors have full-time jobs teaching, they often need more lead time to prepare deliverables than independent consultants need. Communicate early and often regarding deadlines and progress. Set firm dates for the expert to complete the necessary research/analysis, outlines, drafts, and revisions and the final report. Remember that professors often do not have secretarial support for expert witness engagements. Make sure your expert is accessing documents you provide, is keeping track of documents considered and relied upon, and has a plan for creating demonstratives and any necessary graphics.
- Documents and communications. Under Rule 26, draft expert reports are generally protected from disclosure. Additionally, the work-product doctrine may protect certain documents and communications exchanged between you and your expert. But if these protected documents/communications are stored in university-owned email accounts or on university-owned devices, they might be university property. This could present issues if the university ever receives a public records request or subpoena for your expert’s documents. Such requests could come from opposing parties in your case, from the media, or from parties in other litigation in which your expert is a disclosed expert. If your expert does not own the protected documents and communications, the protection could be in jeopardy, especially if the university does not understand the nature of the engagement.
If this happens, and you are aware of it, there are several potential responses. Depending on the jurisdiction and the nature of the request, your client may be able to serve objections. Your client should attempt to coordinate with university counsel to conduct a privilege review and should consider moving for a protective order. But each of these measures creates additional costs and might not block the production of protected materials.
Therefore, it is better to take preventative measures. Instruct your expert and her team not to commingle university and case materials. For case-related communications, the expert and her team should use only their personal email accounts and personal phones. Similarly, the expert and her team should not store case documents or communications on any university-owned devices.
- Deposition and trial preparation. As teachers, professors often fall prey to the cross-examination tactic in which opposing counsel appears like a wide-eyed student, seemingly very interested in and entertained by the expert’s explanations. Use extensive practice to prepare your expert to handle this tactic. The professorial mindset is more conducive to direct examination at trial, when it may be beneficial to “teach” the fact finder.
Retaining a professor as an expert witness provides many benefits but can pose some challenges. You can better manage those challenges by taking appropriate steps before and during the engagement.
Kathleen E. Perkins is an associate at Hunton Andrews Kurth LLP in Charlotte, North Carolina.
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