MAY BE GREAT PEOPLE BUT NOT BE EXPERTS ABLE TO TESTIFY IN COURT ON THE SUBJECT OF THE LITIGATION.
Attorneys are often selected by all sides to give Expert Testimony. However, if the proffered Expert does not know the subject matter, that witness is not an Expert in that particular case.
This is a problem in all areas including but not limited to insurance bad faith. For example, this problem surfaced in a Wisconsin case recently reported by Westlaw: Village of Slinger v. Polk Prop's, LLC, 2016 WL 4533623 (Wis. Ct. App. August 31, 2016) (NOTICE: FINAL PUBLICATION DECISION PENDING).
The plaintiffs in that case sued for legal malpractice. One of the plaintiffs selected an apparently prominent attorney "as its expert witness on [the defendant's] legal malpractice." The problem as the Wisconsin Court of Appeals saw it, however, is that the issue involved in the case is "drafting developer's agreements." The appellate court clearly stated that the attorney proffered as an expert had "a brilliant resume." The court went on to add, however, that the attorney-proffered-as-an-expert "has little foundation in the specialized area of drafting developer's agreements and what foundation he does have is neither recent nor extensive. The circuit court did not err in its discretionary decision to exclude [the attorney's] testimony based on [the attorney's] insufficient qualifications." Village of Slinger v. Polk Prop's, LLC, 2016 WL 4533623 ¶ 13 (Wis. Ct. App. August 31, 2016).
"Foundation in the specialized area" upon which the attorney was offered as an Expert. Qualifications in that area are the ones that count. Future articles posted here will explore the most significant recent decisions in insurance bad faith cases turning on the same points.
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