“Honesty is the best policy” is a cliche, but it is the most important element in the attorney-consultant relationship. It is much better to reveal a shortcoming to retaining counsel than to try to bury the facts. With the variety of online tools available, even the most casual of legal researchers can unearth information about an expert witness’ background, qualifications, and expertise.
There was a story about an expert who was retained on a high profile case. The attorney had given the expert witness the usual admonition about disclosing any potentially damaging information to the attorney before the depositoin. The expert said that there was nothing to hide.
At the expert’s deposition, the opposing counsel started with the usual background questions. When the attorney asked the expert a series of seemingly innocuous questions about about the expert’s addresses, the expert froze. Much to the dismay of the retaining attorney, the expert stopped the deposition. Once outside the conference room, the expert said to retaining counsel, “I didn’t tell you. My previous address was San Quenton jail.”
While this is an extreme example, the point is that a good attorney can “work around” an expert’s shortcomings through objections, work product privileges, or by designating the expert as a non-testifying expert. However, once on record, there is no turning back.