Disqualification Dilemma for Expert Witnesses

Strategic disqualification is a tactic in which a recognized expert is interviewed by a prospective client to determine where the expert stands on a particular fact pattern. But the client's attorney may not be really interested in the actual expertise of the witness elect, nor is the lawyer interested in whether or not the witness will opine in the client's favor. This attorney has only one agenda: to create the appearance of a relationship substantial enough so the opposing counsel can't also consult with the expert.

In a music case, for example, I was first approached by the plaintiff's attorney. It seemed like they had a sketchy, albeit righteous, case. The attorney wined and dined me, had me up to his office, introduced me to his staff and said a retainer would be forthcoming. On this good faith I showed him how to do a title search for the songs being used in his damages model. The lawyer thanked me and we parted company.

Two hours later he fired me. It was the first (and only) time I've ever been fired off a case and it made no sense. Much of the case was circumstantial ' the penumbra wherein experts thrive. Coupled with my track record and my CV, which is over 10 pages long, this was a bit of a mystery.

Sure, the attorney had given me a reason that I was fired. It was because I refused to sign a non-standard, overreaching confidentiality agreement, one that would likely put me, or indeed anyone who writes or consults for a living, in breach with other pre-existing agreements. The attorney explained that it was at his client's insistence because the client wanted to write a book about the case and was concerned about my visibility as an author. In short, the attorney claimed that his client was afraid that I might write a competing book.

To anyone who's been involved in litigation this would sound absurd. The reason they were attracted to me in the first place was my popular written works, which are recommended reading in about 50 schools. But more to the point, no settlement involving seven figures ' as these parties were seeking 'is without an extensive nondisclosure order that would prevent the exact thing his client was trying to do. In other words, if they won the case the plaintiff would never be allowed to write or speak about it publicly.

So given all this, I was glad to be out of the case. However, several weeks later opposing counsel contacted me to be a consultant ' not a testifying witness. Immediately, the plaintiff's attorney objected on the grounds that he had shown me “proprietary information.” He had never shown me anything at all, but proving that would become a “he said-I said” scenario that would likely end in a bad result for me. My instinct was to consider suing for what seemed to me an obvious and transparent strategy to disqualify me from case. After all, the defendants were about to send me a retainer. Could I sue at least for contract interference or lost wages?

I called a good friend who is recognized as a top litigator. When I explained the scenario, this attorney growled, “Nahhh!,” adding: “You can't do anything. In fact, if I were him I would sue you for even taking [the defendant's] phone call.”

Needless to say, I was more than a little shocked. I've heard of people disqualifying attorneys in divorce and contract disputes but never an expert witness. We are hired to tell the truth, after all, not take sides. In broader fields, like aviation or medicine, where there are thousands of experts, one could argue that it's no big deal for one, or even several to be eliminated. But in a niche field like music there are few. So few, in fact, that a determined attorney would only have to make but a handful of phone calls to strategically disqualify every objective witness.

Make Your Own Terms

When you think of all the niche fields that can fall victim to this dynamic, the question starts to resonate beyond my little practice; strategic disqualification was more than clever lawyering, it can only serve to obfuscate a fair trial. Several of my smarter legal buddies suggested something radical: if I could get a potential attorney to agree in writing not to send me any proprietary information, but he claimed he did so after-the-fact, I could sue for breach of contract. I bounced this theory off several other lawyers and there was a positive consensus, although none had heard of a retainer agreement containing such language.

Music and copyright is so specialized that they require special terms. And if enough experts adopted the same type of agreement, then eventually it would become a standard for which there would be no workaround. The clause would go like this:

“It is vitally important that during the initial consultations before you designate me as your Expert, you do not send me any documents or reveal any information to me that is confidential between you and your client or any information that your client might consider proprietary to their business, trade secrets, or future or past endeavors.

In the event that I cannot render an opinion favorable to your client, and you do not wish to retain me, then you hereby waive any right of privacy or disqualification should your client or you determine that due to accident, negligence or other acts on your part I was exposed to confidential or proprietary information. Any such assertion by you to the contrary shall be deemed a breach of this agreement.”

Not more than a couple of weeks after I finished my new terms sheet I received a call for a case involving a major pop star and major record labels. All in all, an immensely complicated case and one any expert worth his salt would be excited about, particularly if you can render an unimpeachable position. Which I believe I could. With all this on the line, was I little afraid of using this case as my guinea pig for a new contract that would risk exposure to my client? Yes, of course, but I've always been a bit of a risk-taker and you have to start somewhere.

To my surprise the attorneys didn't even blink at my terms. In fact, they embraced them. I've used the clause three times now, each without incident. In my practice I have been lucky enough to work for some of best legal talent in my area. They are smart, courageous and have never asked me to lie. Perhaps that is why in 10 years running, I have never lost a case for them.

Being an expert in a niche field like the entertainment industry can have hidden dangers. In fact, there are perils that can permanently jeopardize an expert's reputation as well as the client's case. In over 10 years of helping to resolve disputes in the music industry and being a court recognized expert in California, Florida, Puerto Rico and New York federal court, I have experienced what I now come to understand is a common tactic among litigators. Maybe I've been lucky, or maybe until recently, I just haven't been on the radar. Like most experts, my first jobs were referred by personal acquaintances. But today if you input a search with the phrase “music business expert,” my name is likely to be listed in the top five and always on the first page of Google (on a good day).

'Strategic Disqualification'

One would think that, for a litigation consultant, this would be a cause for celebration; more exposure means better cases, higher fees. But there are dangers in being so visible in a niche field. Mainly, you can find yourself a prime target for what I call “strategic disqualification.”

Strategic disqualification is a tactic in which a recognized expert is interviewed by a prospective client to determine where the expert stands on a particular fact pattern. But the client's attorney may not be really interested in the actual expertise of the witness elect, nor is the lawyer interested in whether or not the witness will opine in the client's favor. This attorney has only one agenda: to create the appearance of a relationship substantial enough so the opposing counsel can't also consult with the expert.

In a music case, for example, I was first approached by the plaintiff's attorney. It seemed like they had a sketchy, albeit righteous, case. The attorney wined and dined me, had me up to his office, introduced me to his staff and said a retainer would be forthcoming. On this good faith I showed him how to do a title search for the songs being used in his damages model. The lawyer thanked me and we parted company.

Two hours later he fired me. It was the first (and only) time I've ever been fired off a case and it made no sense. Much of the case was circumstantial ' the penumbra wherein experts thrive. Coupled with my track record and my CV, which is over 10 pages long, this was a bit of a mystery.

Sure, the attorney had given me a reason that I was fired. It was because I refused to sign a non-standard, overreaching confidentiality agreement, one that would likely put me, or indeed anyone who writes or consults for a living, in breach with other pre-existing agreements. The attorney explained that it was at his client's insistence because the client wanted to write a book about the case and was concerned about my visibility as an author. In short, the attorney claimed that his client was afraid that I might write a competing book.

To anyone who's been involved in litigation this would sound absurd. The reason they were attracted to me in the first place was my popular written works, which are recommended reading in about 50 schools. But more to the point, no settlement involving seven figures ' as these parties were seeking 'is without an extensive nondisclosure order that would prevent the exact thing his client was trying to do. In other words, if they won the case the plaintiff would never be allowed to write or speak about it publicly.

So given all this, I was glad to be out of the case. However, several weeks later opposing counsel contacted me to be a consultant ' not a testifying witness. Immediately, the plaintiff's attorney objected on the grounds that he had shown me “proprietary information.” He had never shown me anything at all, but proving that would become a “he said-I said” scenario that would likely end in a bad result for me. My instinct was to consider suing for what seemed to me an obvious and transparent strategy to disqualify me from case. After all, the defendants were about to send me a retainer. Could I sue at least for contract interference or lost wages?

I called a good friend who is recognized as a top litigator. When I explained the scenario, this attorney growled, “Nahhh!,” adding: “You can't do anything. In fact, if I were him I would sue you for even taking [the defendant's] phone call.”

Needless to say, I was more than a little shocked. I've heard of people disqualifying attorneys in divorce and contract disputes but never an expert witness. We are hired to tell the truth, after all, not take sides. In broader fields, like aviation or medicine, where there are thousands of experts, one could argue that it's no big deal for one, or even several to be eliminated. But in a niche field like music there are few. So few, in fact, that a determined attorney would only have to make but a handful of phone calls to strategically disqualify every objective witness.

Make Your Own Terms

When you think of all the niche fields that can fall victim to this dynamic, the question starts to resonate beyond my little practice; strategic disqualification was more than clever lawyering, it can only serve to obfuscate a fair trial. Several of my smarter legal buddies suggested something radical: if I could get a potential attorney to agree in writing not to send me any proprietary information, but he claimed he did so after-the-fact, I could sue for breach of contract. I bounced this theory off several other lawyers and there was a positive consensus, although none had heard of a retainer agreement containing such language.

Music and copyright is so specialized that they require special terms. And if enough experts adopted the same type of agreement, then eventually it would become a standard for which there would be no workaround. The clause would go like this:

“It is vitally important that during the initial consultations before you designate me as your Expert, you do not send me any documents or reveal any information to me that is confidential between you and your client or any information that your client might consider proprietary to their business, trade secrets, or future or past endeavors.

In the event that I cannot render an opinion favorable to your client, and you do not wish to retain me, then you hereby waive any right of privacy or disqualification should your client or you determine that due to accident, negligence or other acts on your part I was exposed to confidential or proprietary information. Any such assertion by you to the contrary shall be deemed a breach of this agreement.”

Not more than a couple of weeks after I finished my new terms sheet I received a call for a case involving a major pop star and major record labels. All in all, an immensely complicated case and one any expert worth his salt would be excited about, particularly if you can render an unimpeachable position. Which I believe I could. With all this on the line, was I little afraid of using this case as my guinea pig for a new contract that would risk exposure to my client? Yes, of course, but I've always been a bit of a risk-taker and you have to start somewhere.

To my surprise the attorneys didn't even blink at my terms. In fact, they embraced them. I've used the clause three times now, each without incident. In my practice I have been lucky enough to work for some of best legal talent in my area. They are smart, courageous and have never asked me to lie. Perhaps that is why in 10 years running, I have never lost a case for them.