If you’re handling cases that require expert testimony, you may want to videotape expert testimony in advance or face possible malpractice if your expert fails to show. That’s a lesson that the attorney in this article, Rare Suit Against Expert Witness Highlights Pitfall of Not Showing Up (NJLJ 12/23/04) almost learned the hard way. In this particular case, a plaintiff sued his expert witness who’d rendered a positive opinion but failed to show for trial, thus forcing the plaintiff’s attorney to settle for far less than the plaintiff would have otherwise received with the expert taking the stand. The expert in turn sued the attorney claiming that the expert could have been available had the attorney made him aware of the need. Ultimately, the court absolved the attorney of malpractice, finding that applicable standards do not require attorneys to videotape deposition testimony in advance of trial. But that’s after a three week trial and a possible appeal, so the attorneys are not out of the woods yet.
Don’t let this happen to you. Plan ahead for the possibility that experts may skip town or be otherwise engaged in another trial when it comes time to call them to the stand. And plan accordingly.