Working With Non-Testifying Experts: A Practical Guide for Attorneys

A non-testifying expert, often called a consulting expert, can help counsel assess technical issues, test case theories, and prepare for litigation without being initially retained to offer trial testimony. The value of the engagement often depends less on the expert's credentials alone than on how clearly the legal team defines the role, manages the work, and revisits the assignment as the case develops.

Before retaining an expert, counsel should determine whether the assignment is best suited for a consulting role, a testifying role, or a structure that anticipates both possibilities. For a threshold discussion of those consulting vs. testifying expert roles, consider the expert's expected contribution, the case schedule, and the likelihood that the opinions may ultimately be needed at trial.

When a Consulting Expert Adds Value

A consulting expert may be particularly useful when a case presents specialized issues that counsel needs to understand before deciding how to proceed. The consultant can provide technical context, identify factual gaps, and help the legal team ask more precise questions during investigation, discovery, and expert selection.

Common consulting assignments include:

• Reviewing technical documents or records to identify important issues and terminology.
• Assessing damages theories, assumptions, and supporting materials.
• Reviewing prior art and technical questions in patent matters.
• Evaluating allegedly defective products in product liability litigation.
• Assessing allegedly dangerous conditions in premises liability claims.
• Helping counsel identify the disciplines that may be necessary for a later testifying-expert engagement.

The purpose is not simply to obtain a favorable opinion. A useful consultant can pressure-test an early theory, explain adverse facts, and help counsel decide which issues warrant additional investigation. That work can inform strategy even if the consultant never becomes a witness.

A Workflow for Retaining and Managing a Consulting Expert

A disciplined engagement process helps the legal team get usable analysis while avoiding preventable confusion about the expert's role.

1. Identify the decision the expert will inform. Define the litigation question before beginning the search. The question may concern causation, technical feasibility, valuation, prior art, product design, or the qualifications needed in a future testifying expert.
2. Determine the intended role. Clarify whether the expert is being retained only for consultation, may assist with expert vetting, or could later be considered for testimony.
3. Create a focused scope. Specify the tasks, materials, expected work product, communication process, budget parameters, and timing.
4. Select for case fit. Evaluate subject-matter expertise, relevant practical experience, credentials, and the ability to explain complex issues clearly if testimony later becomes necessary.
5. Onboard with organized materials. Provide a curated case file, chronology, issue list, and clear instructions about the questions counsel wants answered.
6. Reassess as the case changes. Revisit the assignment after important discovery, dispositive-motion developments, new evidence, or changes to the anticipated trial presentation.

This is a practical workflow, not a substitute for analysis of the governing procedural rules in a particular matter.

Define the Scope Before Work Begins

The engagement should begin with a written, shared understanding of what the consultant is being asked to do. Broad requests for an expert to "review the case" can produce work that is difficult to use, exceeds the budget, or fails to address the question that matters most to counsel.

A well-defined scope commonly addresses:

• The specific issues for review and the assumptions, if any, the consultant should evaluate.
• The materials the consultant will receive, including records, pleadings, discovery, technical documents, photographs, and prior reports.
• Expected deliverables, such as an oral briefing, written analysis, issue list, damages assessment, or feedback on a prospective expert.
• Timing, including interim check-ins, deadlines, and how new materials will be transmitted.
• The consultant's role in relation to attorneys, clients, insurers, co-counsel, and any future testifying experts.

Counsel should also consider early whether testimony could become necessary. A consultant who is a strong technical fit may not necessarily have the experience, availability, communication skills, or record needed for a courtroom-facing role. Addressing that possibility at the outset supports better selection and avoids a rushed reassessment later.

Select and Vet the Consultant

The right consultant is not always the most prominent person in a field. The key question is whether the expert's knowledge and experience match the specific dispute, the evidence available, and the decision the engagement is intended to inform.

Begin by evaluating the consultant's substantive expertise. In a product case, for example, counsel may need experience with the relevant design, manufacturing process, warnings, testing, or applicable technical standards. In a damages assignment, the relevant fit may turn on industry knowledge, valuation experience, or familiarity with the records underlying the claimed losses.

Credentials should be reviewed alongside practical experience. Counsel may examine education, publications, professional roles, prior testimony, disciplinary history, potential conflicts, and the expert's ability to explain technical opinions in clear terms. The depth of review should reflect the importance of the assignment and the possibility that the expert may later be considered as a testifying witness.

Consultants can also serve as valuable evaluators of prospective testifying experts. Because they understand the technical issues from inside the engagement, they may help counsel assess whether a candidate's background, methodology, and experience fit the issues that will need to be addressed in court. Their perspective can help distinguish general expertise from expertise that is genuinely useful to the case.

Manage Communications and Case Materials

Consulting engagements work best when counsel gives the expert an organized record and a clear channel for questions. A concise case memorandum, chronology, issue list, and document index can reduce time spent locating basic facts and help the consultant focus on analysis rather than file management.

Establish how the expert should communicate preliminary observations, request additional materials, and identify facts that could affect the analysis. Regular, focused check-ins are often more useful than waiting for a final deliverable. They allow counsel to clarify assumptions, direct further review, and identify emerging issues before substantial work is completed.

The legal treatment of communications, materials, and opinions may depend on the facts, the applicable rules, and the jurisdiction. Counsel should set engagement boundaries with those considerations in mind and seek jurisdiction-specific guidance where appropriate. For a more detailed discussion, see consulting expert privilege and confidentiality.

Coordinate With Testifying Experts and Plan for Role Changes

A consulting expert may work alongside a testifying expert without taking over that witness's role. The consultant can help counsel understand technical issues, identify questions for the testifying expert, review records, or assess whether the testifying expert's proposed analysis addresses the relevant facts. The team should nevertheless keep each expert's assignment distinct.

If counsel may later ask a consultant to testify, that possibility should be evaluated early and revisited when the case changes. Relevant considerations can include whether the consultant has reviewed materials or formed opinions that may affect disclosure obligations, whether another witness is better suited to present the issue, and whether the consultant is available for the demands of expert discovery and trial preparation.

A conversion from consultant to testifying expert can have procedural consequences that depend on the governing rules and the facts of the engagement. Counsel should evaluate those consequences before changing the role rather than assuming the original consulting structure will control. For Rule 26-focused issues, review non-testifying expert discovery rules.

Consulting Expert Engagement Checklist

Before work begins, confirm that the legal team and consultant have addressed the following practical points:

• The expert's role is defined as consulting, testifying, or subject to later reassessment.
• The engagement identifies the specific litigation questions the expert will address.
• Expected tasks, deliverables, timing, and budget expectations are clear.
• The consultant has received organized, relevant materials and understands the key factual assumptions.
• Communication channels and points of contact are established.
• Potential conflicts and qualifications have been reviewed.
• The team has considered whether testimony may later be needed.
• Counsel has planned to reassess the engagement after significant developments in the case.

For attorneys who need assistance locating and evaluating an expert for a focused consulting assignment, Expert Institute's expert witness search service can help identify professionals whose experience aligns with the issues in the case.