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4e 2′ 0- 9 n $ qcg 0 g 21 d 4,. – : Z5 _3 A4 R0 W0 Q4 o p. Sign Up For Newsletter .About 28 years ago, when I started practicing law, I learned what an expert witness is and how an expert’s testimony can be just as helpful as physical evidence to the trier of fact. I also learned that the unrepresented witness stands to lose everything he has worked so hard for in this country. The same is true of a lawyer who handles an expert witness and then fails to exercise the requisite care in preparing the expert for the deposition. The witness often loses his job and suffers an immediate loss of income for unemployment.

A recent Ninth Circuit decision, Damron v. Brown, is another example of how an accident lawyer who handles an expert witness can lose his license. In this case, the expert witness, who had been fired from his job and was about to be evicted from his home for nonpayment of rent, was driven to commit suicide following a deposition in which his lawyer failed to explain the complex concept of privilege. As it turned out, the case was mostly about a dispute over whether the attorney had failed in his professional duties when he failed to retain expert witness liability insurance. The expert witness would be available for the trial, however, because she would not be called as a witness on either side until after the expert witness expert witness had died. The District Court determined that the expert witness did not satisfy the applicable standard under state law in failing to retain the required insurance.

While this issue has been before the Ninth Circuit several times, and the unanimous-except-for-one-judge decision in Damron was something of a legal gem, the case is so devoid of legal substance that it is not worth the three-year wait for a decision. What makes this case worth a closer look is the Supreme Court decision, two years ago, in Jones v. Clinton, that created a new common law privilege in many states to cover communications between an attorney and client relating to a lawyer’s potential litigation.

The privilege is a complicated issue that has been litigated in the Third, Eighth, and Tenth Circuits. It is also pending in the Second Circuit (as part of the same issue). In Jones, however, the Supreme Court recognized a state’s ability to create this common law privilege. Accordingly, the Court granted certiorari and remanded the case
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