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My expert crashed, but I saved the case.

Article Excerpt
You've prepared an airtight case--solid liability theory, persuasive evidence compeling arguments--only to find out at the last minute that your indispensable expert witness can't provide the crucial testimony you need. These lawyers faced that predicament and prevailed. Read how they put their cases back together again.

Getting to know the skeletons in the closet

JARED P. BUCKLEY

I was working on an automobile clash case in which the plaintiff claimed to have sustained a traumatic brain injury. During my investigation, I learned that she had applied for Social Security disability and had undergone an "independent" medical examination by a psychiatrist on behalf of the Social Security Administration.

Much to my surprise, the examining psychiatrist had determined that my client had, in fact, sustained a traumatic brain injury. The psychiatrist had even undertaken a course of treatment. Could there be a better witness for the plaintiff than a doctor whose job was to find that there was nothing wrong with her--but who determined the opposite?

When I met this psychiatrist for the first time, I was impressed with his background and his careful examination and treatment of my client. Toward the end of the meeting, when I felt the psychiatrist had become comfortable with me, I asked him whether there were skeletons in his closet--anything I should know about that the defense could use against him in the upcoming trial. He said he wasn't aware of anything that would be a problem. During his deposition, nothing came up to concern me, and I prepared myself for what seemed like a routine case.

At trial, the psychiatrist, who was the key witness during the injury phase of the proceedings, testified strongly for the plaintiff. When I completed the direct examination, the defense attorney began his cross.

He asked: "Doctor, isn't it true that in 1980 you were found not guilty by reason of insanity of a cocaine trafficking charge in Oakland County, Michigan?" The psychiatrist conceded that this was true.

Trying to appear as if the question had not hit the fight between the eyes, I asked the judge to dismiss the jury and declare a mistrial. I suggested that the question was inappropriate because the doctor had not been convicted. There was no gap in the psychiatrist's licensure because his license had been retroactively reinstated.

After extensive argument, the judge ruled that a curative instruction would be appropriate, and trial would continue the next day.

Outside the courtroom, I confronted my expert. "Why didn't you tell me about this before?" He said he didn't think it was important because he had always had his license, and he never thought the issue would come up.

The following day, the judge directed the jury to disregard the defense counsel's question about the drug charge. However, once you throw a skunk into the jury box, it's hard to tell the jury to ignore the odor. I was convinced that regardless of any instruction from the court, the jury...

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