In litigation, whether criminal or civil, there are times when a client’s access to funds is limited. When determining where to cut corners, often times, a decision is made to use the same expert for separate but important roles: that of consulting expert and testifying expert.
Consulting Experts Generally
Under the Federal Rules of Civil Procedures, consulting experts, retained or employed by a party in anticipation of litigation is not subject to interrogations or deposition. Fed.R.Civ.Pro. 26 (b)(4)(D). This gives individuals, and their lawyers, the freedom to consult with an expert to determine whether one may have a claim. With the help of an expert, an injured person can explore a product liability claim, a medical malpractice claim, or other personal injury claim without fear of discovery and deposition.
Similarly, the Federal Rules of Civil Procedure allow consulting experts to avoid interrogation or deposition if they are retained or specially employed for the purpose of assisting the attorney in preparing for trial. Once a cause of action has been established, or, in the case of a party defending a civil suit, once on notice of the cause of action, an attorney is free to hire an expert to assist in understanding the issues, evaluating the weight of the evidence, preparing questions for direct or cross examination, communicating complex scientific issues in language the lay person can understand, and evaluating the strength or merits of any offer to settle.
Testifying Experts Generally
Testifying experts, on the other hand, are subject to depositions. Where the rules require the expert write a report, the deposition only occurs after the report is provided. Reports are required unless otherwise stipulated or ordered by the court, and must include:
- A complete statement of all opinions the witness will express and the basis and reasons for them
- The facts or data considered by the witness in forming them
- Any exhibits that will be used to summarize or support them
- The witness’s qualifications, including a list of all publications authored in the previous 10 years
- A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition
- A statement of the compensation to be paid for the study and testimony in the case
Fed.R.Civ.Pro 26 (a)(2)(B). Interestingly, drafts of the report are not considered discoverable. Some attorney communications are protected, and other attorney communications are not. Those that are subject to discovery, deposition, and cross examination include:
- Discussions about compensation
- Discussions about data or facts the attorney provides that the expert has considered when forming the opinions expressed in their report
- Assumptions the expert received from the attorney upon which the expert relied when forming their opinion.
The Challenge When Combining Consulting Experts and Testifying Experts
Imagine a situation in which a consulting expert is brought into a case involving a head injury. Knowing the consultant is not going to testify, the attorney is free to ask all sorts of questions based on conversations with their client. “My client tells me. . . Could the injury have been sustained that way?” “Could that have exacerbated the injury?” “What about. . .” The luxury of using a consulting expert is the attorney is free to ask the consulting expert anything, and the consulting expert is free to respond, bearing in mind all the facts and circumstances known to the expert. This allows the attorney the opportunity to explore very real issues and obtain answers to pressing questions.
In a perfect world, a consulting expert is used to identify and clarify the issues, having looked at the case as a whole, and testifying experts come in only to address the issues previously clarified. However, when a client seeks to save money, by only hiring one expert, the lines can get blurred. An attorney must exercise extreme caution when communicating with an expert who is both consulting and testifying.
Lawyers must keep meticulous track of all information provided to the expert. Experts must keep meticulous records of all information relied upon when formulating opinions which they later express in their report. This data must be disclosed under the rules.
Advantages and Disadvantages
The advantages to using a single expert include a cost savings, as one does not have to pay two experts to review what can be complex and voluminous reports. It allows for the attorney and expert to foster a relationship and build trust.
The disadvantages of using a single expert can include an attorney’s limitation on disclosing facts or exploring theories with an expert, which they might have done if both a consulting expert and a testifying expert were employed. Additionally, testifying well before a jury is a gift that not all experts have. However, the expert who might be best for testifying before a jury may not be best for consulting on potential alternating theories of defense.
At the end of the day, in every case, the attorney will have to carefully evaluate the pros and cons of using a single expert versus using both a consulting expert and a testifying expert. What may make sense in one case may not carry the same support in another case. Only by truly engaging in a case-by-case evaluation can one decide what is in the best interests of the client. This can be particularly hard to evaluate before an attorney retains an expert to consult. As such, one approach may be to hire an expert with an eye towards consulting. Then early in the relationship, the attorney may engage in a discussion about the pros and cons of maintaining the same expert for testimony, versus hiring a different expert for testimony.