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The Corporate CounselorLJN NewslettersNewsSections

When Forensic Neuropsychiatric Expertise Is Indicated, Early Retention Is Best

By Harold J. Bursztajn and Alexander Geiger
January 31, 2015

Many defense lawyers and in-house corporate supervisors make the mistake of waiting until a case is on the eve of trial before retaining the requisite expert witnesses, as a result of either inadvertent procrastination or a calculated decision to delay expert disclosure for as long as possible. Neither of these reasons is a sufficient justification to offset the benefits that accrue from retaining expert witnesses sufficiently early in the litigation process to enable the experts to assist the litigators and their in-house supervisors in making preservation of evidence decisions, in guiding their approach to discovery, and in shaping their overall litigation strategy.

Just as no self-respecting lawyer would send a demand letter, file a complaint, or serve a responsive pleading without first investigating all available factual evidence and researching the applicable law, no competent litigator should embark on the litigation process without retaining, and consulting with, the expert witnesses who will be necessary to make the client's affirmative case and to rebut the adversary's opposing case. Often, experts will identify lines of inquiry, approaches to marshalling evidence, and strategies for debunking the other side's fact and expert witnesses that may prove decisive at trial. If the decision to retain one's own experts is delayed until the eve of trial, such opportunities will be lost.

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