By Michael Barr
Some lawyers call us first. Others call us when it's urgent. The call often starts the same way: an attorney has searched on their own, the right expert hasn't turned up, and the case can't wait. With the identifying details removed, our intake notes include requests like these:
- A patent team that had already approached a dozen candidates. Each one was conflicted, a poor technical fit, or committed elsewhere, and the team wanted options by Thursday morning.
- A team whose second retained expert had just stepped away because the work fell outside his focus.
- An invalidity report due within weeks, and the expert from an earlier phase of the dispute no longer available.
- A rebuttal report due three weeks after the other side served its updated report.
- A protective order that required a 15-day waiting period before a new expert could see the source code, so the team needed to retain someone that week.
And then there is the occasional purple unicorn: source code review next week, in a clean room in the UK, because the retained expert was badly hurt in a car accident.
None of these firms did anything wrong. Expert availability fails for ordinary reasons, and it tends to fail at the worst moment. What separates a manageable replacement from a damaging one is mostly how much of the work was done before it was needed.
Why the expert you wanted is often unavailable
The most qualified people in a narrow technical field are a small group, and the same names come up on both sides of related cases. A conflict can surface at several points:
- At first contact. The candidate already works for the opposing party, in this case or in a related one.
- During the conflict check. The expert consulted for the other side years ago, or holds equity in a competitor.
- After retention. A new party joins, a related case is consolidated, or the expert's employer takes on work that creates a problem.
Courts considering whether to disqualify an expert who previously worked with the other side commonly ask two questions: whether that side reasonably believed a confidential relationship existed, and whether it disclosed confidential information relevant to the current case. An expert who clears the first question may still be lost to the second, and the answer is not always clear until someone moves to disqualify.
The other trigger is the calendar. Scheduling orders are set by the court, not by the expert, and a well-chosen expert who is in trial in another matter during your report window is effectively unavailable.
What replacing an expert costs
The search is the visible part. These are the parts that consume the schedule:
The conflict check. Each new candidate has to be cleared against every party, not just the named ones. On a multi-defendant patent case that list can be long.
The protective order clock. Many protective orders in technical cases require a party to disclose a new expert to the other side, with time to object, before that expert sees confidential material. That window is often one to two weeks, and it does not start until the expert is identified. On the source code case above, a 15-day objection period meant every day spent searching came directly out of review time.
The review room. Source code is often available only on standalone computers in a review room, with limited hours and limited seats. A replacement reviewer inherits whatever schedule remains. Our article on consulting and testifying experts covers why getting someone into the code early matters even before a testifying expert is designated.
The record. A replacement has to read what the first expert read, and sometimes defend what the first expert wrote.
What courts tend to allow
When a disclosure deadline has passed, adding a new expert usually requires leave of court. Under the federal rules, modifying a scheduling order requires good cause, and courts look closely at why the original expert became unavailable and how quickly the party acted.
Where the original expert became unavailable for reasons outside the party's control, courts frequently permit a substitute. They also frequently limit that substitute to the subject matter of the original report, so the replacement cannot use the change as a chance to improve the opinions. A replacement who must adopt or closely track an existing report needs to be someone who can stand behind that methodology under cross-examination. That narrows the field further, and it is worth knowing before the motion is filed.
The practical point for counsel is that delay is weighed against you. A replacement identified in days supports a good cause argument. One identified a month later invites the question of why it took so long.
Plan for the replacement before you need one
The firms that handle these moments well have usually done three things in advance.
Keep a second name. When you choose a primary expert, ask who the next-best candidate would be and why. Our guide to how expert witness firms vet and prequalify experts describes the screening that makes a backup list worth having.
Clear conflicts on more than one candidate. Running conflicts on two or three people at the start costs little. Running them one at a time after a conflict surfaces costs weeks.
Check the bench behind a sole practitioner. A single expert is a single point of failure. Our guide to evaluating expert witness firms explains why a bench of one has no depth when a conflict or schedule problem appears.
An example
A five-patent cellular case, headed for both district court and inter partes review, came to us after counsel had worked through a long list of wireless experts. Every one was either conflicted or not right for the case. The team needed someone with hands-on experience in wireless technology from the 1990s and early 2000s, credentials suited to the Patent Trial and Appeal Board, and trial presence in front of a jury.
That combination is uncommon, and it is exactly the kind of request a deep bench is built for. Because our experts are under subcontract and cleared for conflicts before they are ever submitted, the candidates we presented were people who were free to take the case. Counsel retained one.
The close
Replacing an expert under deadline pressure is mostly a matter of time: time to clear conflicts, time to get through the protective order, and time to read the record before the report is due. Planning for the replacement in advance is how you keep that time.
We typically present candidates within 2 to 3 business days. The search is free and confidential for the attorney. Our fee is built into the expert's hourly rate, so we are paid only if you retain. Common questions about how that works are answered in our FAQ.
Note: This article offers practical guidance for attorneys engaging technical experts. It is general commentary, not legal advice. Consult counsel about any specific matter.
Barr Group's team of electronics and software expert witnesses provide experienced and unbiased source code reviews, expert reports and testimony for product liability, patent infringement, software copyright, and trade secrets litigation. HIRE AN EXPERT
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Free, confidential, conflicts-checked, and our fee is built into the expert's hourly rate, so we are paid only if you retain.