GC Tips for Serving as an Expert Witness

By William Vogeler, Esq. on July 20, 2017 | Last updated on March 21, 2019

Marc Firestone, general counsel for Phillip Morris, told Congressional representatives that illegal tobacco dealers rob governments of up to $50 billion in tax revenue each year.

"Criminals are the only promoters of the global illegal tobacco trade," he reported to the United States Commission on Security and Cooperation in Europe.

His expert testimony highlighted a serious problem in the industry, but it also underscored a challenge that general counsel face when called upon to testify: what can you actually say?

Ethical Limitations

The Legal Ethics Committee of the District of Columbia Bar, provides some cautions -- both for lawyers who serve as experts and the law firms that employ them.

In some cases, the committee said, a lawyer's service as an expert witness can create a lawyer-client relationship. The client then may expect the lawyer to maintain certain confidences and to avoid conflicts of interest.

On the other hand, if a lawyer serves only as an expert on behalf of another law firm's client, then the expert witness would not typically have an attorney-client relationship.

"The law firm that hires a lawyer as an expert witness should take care to avoid confusion in the mind of its client as to the different role a lawyer plays as an expert witness," the committee said.

Common Mistakes

Any expert witness can make a mistake, and many do. FindLaw's Corporate Counsel lists five of the most common ones:

  • Relying only upon information provided by the attorney.
  • Forgetting you are an advocate only for your own opinions.
  • Putting too much in writing, too soon, and too casually.
  • Being myopic -- lacking foresight and discernment.
  • Sounding too much like an "expert."

Of course, attorneys who retain expert witnesses should also be aware of the possible issues before calling them to testify. It could even help lawyers qualify as experts in the future.

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