What a dilemma!
I'm at a networking charity event and within moments of my arrival this guy comes up to me and introduces himself.
"Mr. Oginski, Hi! I'm Dr. Jones the defense's medical expert on that case that's coming up for trial in two weeks involving claims of improperly performed surgery resulting in horrible damages. Can I talk to you about that case?"
"Whoa! Hold on there fella. I know who you are. I know you're the expert who is coming into trial to oppose our case."
"Why do you want to talk to me?" I ask.
"I want to get the inside scoop about how your expert can say, with a straight face that this surgeon did something wrong...this guy was trying to save your client's life and now you go ahead and sue him for an unfortunate complication..."
Do I talk to the expert? Do I get into the details and the merit of your case with him? Is there some ethical rule that says I shouldn't be speaking to my adversary's medical expert before trial about this case?
Here's the short answer...don't do it.
Nothing good can come of this interaction. Not for me and certainly not for the expert. In my opinion, it's best to avoid this interaction at all. However, if the doctor initiates the conversation, my response would likely be "Hi Doctor, nice to meet you. I can't talk to you about this case. After it's over, I'd be more than happy to chat. Right now, I've got to get back to my wife, thanks."
Is there an ethical rule that says I can't speak to my opponent's expert? Not really. I didn't seek him out. We met inadvertently at a charity event. I didn't plan on meeting him there. He's the one who came up to me. I didn't approach him, although I did recognize him from across the room.
How did I know he was the opposing expert? Simple.
You see, the defense is obligated to notify me when they hire an expert who will testify in their defense. They have to provide me with his credentials including where he went to school, where he did his residency training, whether he did a fellowship, what State he's licensed to practice medicine in and whether he's board certified.
They do not provide me with his name.
With today's computer programs, we plug in his credentials in and it spits out his name.
Then, we try and dig up dirt on this expert.
Likewise, the defense does the same thing when I provide them with my expert's credentials.
I know this guy because I've cross examined him before. I know how he behaves at trial. I've seen his tricks. I've spoken to other attorney's who have cross examined him to get their thoughts and ideas about the type of witness he is. I've gotten trial transcripts on this expert in other cases he's testified in.
This ethical dilemma can result in two different outcomes.
The first is where I say to myself that there's no harm in talking to this expert. In fact, during a casual conversation, I might learn a few of their strategies and defenses that might help our case. I also might learn a weakness in their case that I wouldn't have otherwise have learned until cross examination.
But suppose, during this informal conversation, the doctor is trying to elicit information from me to take back to his defense attorney? What if I accidentally let my guard down and reveal a weakness in our case?
Well, you can be 100% sure that the expert will relay that information to the defense lawyer and try to use that admission against me during trial.
This conversation is a double edged sword and here's why...
At trial, when I cross examine this expert, I will ask him about our informal conversation at this charity event.
"Dr. Jones, you and I had a conversation two weeks ago when we met by accident at this charity event, correct?"
"You were the one who approached me, right?"
"You came over to introduce yourself, true?"
"You came over with the specific intent to talk about the details of this case, right?"
Depending on how upstanding this guy is, he might dispute each of these questions and claim it was the other way around.
"No, Mr. Oginski, you approached me! You were the one who kept harping on how could I defend this case in light of the facts. You were the one who was aggressive even though I told you I couldn't talk to you about this case."
Now I look like the aggressor.
Now I look like I wouldn't take no for an answer.
He's just turned the tables on me and the jury won't like it.
That's why I said it's much better not to get into this situation in the first place.
Has this scenario happened?
Sure it has. Not often, but it has.
Do I have an obligation to notify the defense lawyer that his expert approached me and talked to me?
I don't believe so.
Some attorneys might have a different opinion.
Do I have an obligation to tell the judge about this conversation?
I don't believe so.
Rather than open up pandoras box and create all this drama that will come out at trial about this conversation, the better practice is not to have the conversation to begin with.