Consulting Expert versus Testifying Expert – Strategy Decisions

In litigation, there are two types of experts that can be retained by counsel.  The differences between the two can have a significant impact to retaining counsel’s case.  One major difference is that the “consulting expert” is typically retained by counsel as an “extension” of the law firm to assist counsel with formulating strategy, reviewing documents, and other assistance in resolving the matter.  In general terms, the consulting expert will operate under the attorney’s client privilege, and if properly structured and adhered, the consulting expert will never be disclosed nor will any of the consulting expert’s notes, discussions and materials ever be discoverable.  The “testifying expert”, however, is entirely different, has no privilege, and everything the testifying expert does, writes, and relies upon is fully discoverable (from inception).

In very large cases, there likely will be both consulting experts and testifying experts involved.  However, in smaller cases, the bulk of cases in everyday litigation, counsel may utilize a single expert for both roles, which in essence makes the expert a testifying expert (and everything that has been written, relied upon and produced since inception is discoverable).

Although there is a potential cost savings to the client in using a single expert, there are also risks and disadvantages associated with this practice, as I have been experiencing first hand in recent cases.  As the testifying expert I limit the notes I take, knowing full well that my notes are discoverable.  As I sat through depositions and trial testimony,  I would love to take more detailed notes of issues I heard, to have provided counsel with needed financial direction in the matter.  However, as the “testifying expert” witness, I was frequently prohibited from attending the depositions and portions of trials, and counsel therefore lost the benefits of my background, training and experience in my areas of expertise.  Reading transcripts after the fact no where nearly replaced my ability to write out questions for counsel to ask right during the testimony.

Often new information, or “surprises”, are produced or introduced late in the process, as late as during depositions and trial testimony.  By being able to sit alongside counsel to review the materials and provide questions to ask to legitimize or counter the information could make or break the outcome of the matter.

In my area of expertise I have found this especially true of financial information, such as tax returns, financial statements and other potentially complex transactional information.  In some cases counsel had a great understanding of the financial materials and the implications associated with reported amounts and transactions.  However, in many more cases I have found counsel heavily relied upon my involvement to provide that review and insight.  As the consulting expert one can expand counsel’s knowledge and expertise to ensure a thorough understanding and analysis of any financial information and associated implications.

In the end… I strongly encourage in every matter the consideration of whether it makes sense to engage two experts: one as a “consulting expert” strictly to assist counsel from planning through  final adjudication of the matter; and one as a “testifying expert” should testimony of an expert be required in the matter.  The cost differential may not be as great as one expects, especially if the right experts are engaged.

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