A Michigan Court of Appeals recently ruled that expert witnesses can’t simply claim witness immunity for testimony that can be considered incompetent. Instead, licensed professionals acting as expert witnesses owe the same professional diligence to the party for which they testify as they would to any client. Failing in doing so could result in malpractice.
The full backstory can be found in this Michigan Lawyers Weekly article. The issue was brought to the forefront by litigation of a foreclosed commercial property. The case involved three legal experts brought in as witnesses for the property owners: a legal ethics expert and two experts in real estate brokerage. The witnesses were accused of deliberately concealing the fact that the estate’s claims were frivolous in order to drive up their costs before trial. Specifically, the estate claimed the expert witnesses “breached their duty to the estate by failing to properly investigate the facts required to formulate their opinions, failing to understand the applicable standards, and failing to provide a competent professional opinion.”
At first, the trial court granted judgment for the witnesses based on a broad interpretation of witness immunity standards, which is designed to shield witnesses from being prosecuted for the information they divulge in their testimonies. But a Michigan Court of Appeals disagreed in an unprecedented ruling.
“Where a duty of professional care exists such that a malpractice action may be maintained, witness immunity is not a defense,” the Court of Appeals writes.
The lesson here for attorneys: Be careful who you call on as your legal, accounting, or other expert witness. Those willing to form an opinion without properly investigating could cause more problems than they solve. Look for expert witnesses qualified by state and federal courts with a track record of credible opinions. Ragarding accounting and tax experts, their breadth of knowledge should include testimony in areas of bankruptcy, IRS negotiations, and business damages. Feel free to contact us for more information.
