ACR-GNY - Expert Disclosures

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Expert Disclosures

Sunday, November 30, 2025 12:28 PM | Anonymous

Injury Smart Law believes in using Expert Witnesses to give credibility to our cases

What would should an arbitrator do if sitting on a tribunal or acting as sole arbitrator and mid-way through the process the parties make their expert disclosures, and it turns out that one of the experts is someone she/he knows and with whom she/he has had a very bad experience involving their veracity?

What are your thoughts?

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Comments

Monday, December 01, 2025 11:07 AM | Eric Kuritzky

I would notify the parties, and without going into detail, I would let the know that I've had previous experience with that expert, but not opine about the nature of that. I would also note that the expert should have been presented to AAA earlier in the process. I would then give both parties the option of excluding that expert, with cause, or, if they preferred, I would recuse myself from the case. A previous encounter, as described, would allow one party to challenge my conclusion on the case, negating the process.

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- Monday, December 01, 2025 11:12 AM | Lisa Renee Pomerantz
  
  I actually had something like this situation happen years ago, and disclosed to the parties that I knew the expert witness. The case manager advised me that I should have called her and asked her to make the disclosure.
  
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- Monday, December 01, 2025 1:14 PM | Geoffrey BH
  
  What if it were not an AAA arbitration?
  
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Monday, December 01, 2025 11:11 AM | David E. Robbins

This could have been avoided at the Preliminary Conference stage. The parties should have agreed on a date when they would disclose all witnesses, including experts, to the other side - well in advance of the hearing. Let's assume that typical process took place here and this problematic expert was disclosed at this late date. The witness should have been excluded pursuant to the Preliminary Order.

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- Monday, December 01, 2025 2:32 PM | Henry F Marquard
  
  This issue gets into effective case management. At the preliminary scheduling conference (or the second one for a large/complex case) I set a date at least 3 months prior to trial for all expert disclosures. If one of these situations come up, I have enough time to work through the problem with the parties and/or case manager with sufficient time to withdraw if needed. I'm flexible to most scheduling issues, but not this one- it's a hard and fast rule.
  
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Monday, December 01, 2025 11:13 AM | Richard Wise

Funny. Just happened to me. The construction expert was someone I had just hired to remodel my house. I withdrew. Not a good solution but seemed to only option to me. Actually, the other party (not presenting the expert) was willing to waive any conflict and proceed (over the concerns of his attorney) but I still felt uncomfortable with it.

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Monday, December 01, 2025 11:17 AM | Anonymous

First, disclose the relationship / prior experience, but do not disclose doubts about the expert's veracity. Second, honestly ask yourself whether you can be impartial and not pre-judge the case. If the answer is "no," or if the circumstances of the prior encounter would raise justifiable questions concerning your impartiality, you must resign. Mid-way through a very, very contentious arbitration, with many procedural rulings, or partial awards, might cause one to delve deeper into the circumstances of the expert's appointment (i.e., was it tactical to prompt a resignation; would barring the expert cause less harm than potentially beginning the arbitration over; etc.). This one is quite thorny -- good topic.

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Monday, December 01, 2025 11:25 AM | Alvin Zimmerman

I would immediately take a recess and call the case manager and disclose the issues and let the case manager deal with the issue. and advise me of the decision.

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- Monday, December 01, 2025 12:01 PM | Kevin Sido
  
  I agree fully with Mr. Zimmerman's answer. The arbitrator should bear in mind that her subjective belief that the expert identity won't sway her decision is not the complete test. After the award is rendered, a challenge in court will likely turn solely on an objective test.
  
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Monday, December 01, 2025 11:31 AM | Edward James Groarke

DISCLOSE

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Monday, December 01, 2025 11:52 AM | Gregory Parsons

I would disclose the circumstances of my previous encounter with the expert without addressing the veracity issue. Just because you believe the expert was less than truthful last time, doesn't mean they will not be truthful this time.

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Monday, December 01, 2025 2:03 PM | Thomas Hanrahan

In. my experience, the names of experts rarely come up at preliminary hearing -- the parties don't know who the experts will be. So I do order them to disclose witness names as soon as they know, but that will typically be late in the case. The best course here is to make the disclosure others have noted, and let the parties decide.

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Tuesday, December 02, 2025 3:35 AM | Geoffrey BH

Remembering that, assuming the previous matter was an arbitration, it probably was in confidence, I would probably address Counsel and say something like, "I should disclose that [Expert] and I have met previously." and leave matters to play out. If opposing Counsel ask ror details I would reply, "That is for [Expert] to say." in as neutral a tone as I could manage. If then opposing Counsel objects to the Expert, and Counsel calling does not withdraw [Expert] I would hear the issue and decide on that hearing alone.

If [Expert] stays I would note in the Award that we had met but decide on the objective value of the evidence of the relative experts. If veracity were a issue, I would merely write, "I prefer the evidence of [Y] to that of [X]."

There is no need to call [Expert] a fool or a liar. That would be the worst unprofessional practice.

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