shutterstock.com Expert Witness Availability: Stop Second Bites at the Apple
The author proposes a rule amendment to preclude a "redo" of expert testimony. Simply stated: If a witness is unavailable, and a de bene esse deposition is completed, that witness cannot become "re-available" to testify live at trial.
May 06, 2021 at 12:00 PM
8 minute read
In the real world there are few opportunities to truly redo something. In baseball, batters can't get a fourth strike just because they missed the last pitch and struck out. So why in New Jersey civil courtrooms, when stakes are so high, should attorneys who have declared their expert witnesses "unavailable" to testify live at trial, with no affidavit explaining why they cannot appear required, be allowed to suddenly change their mind and produce the expert witness in the courtroom, with no questions asked? Not only does this practice allow for gamesmanship, the issue becomes of even greater concern when, without anyone asking questions, the witness is suddenly capable of testifying "live" in front of the jury. This is especially true in the area of medical malpractice. So, if no one else raises the question, let me. It seems the answer is simple: A change in the rules for video de bene esse testimony and it's needed today more than ever before.
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