Keys for Working With Non-Testifying Experts

Dani Alexis Ryskamp, J.D.

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— Updated on June 25, 2020

Keys for Working With Non-Testifying Experts

Keys for Working With Non-Testifying Experts

Not all expert witnesses are required to testify at trial. A legal team may also choose to hire an expert as a consultant to provide key information and context about technical or complex issues the case presents.

While there are several benefits to working with a non-testifying expert, these experts’ contributions must be handled carefully in order to preserve confidentiality.

Why Choose a Non-Testifying Expert?

Hiring an expert to consult with your legal team adds a potentially vital perspective to the case as a whole. Often non-testifying experts are hired for tasks like damage assessments or technical review of prior art in a patent case. They may be asked to provide technical evaluations of allegedly defective products in a product liability case, or of allegedly dangerous conditions in a premises liability claim.

A non-testifying expert can also help a legal team hire an appropriate testifying expert. As the resident expert on the technical issues that should be tackled in court, the consultant can help attorneys evaluate potential testifying witnesses’ backgrounds, experience and skills. In this way, non-testifying experts serve as the expert on experts. Should your testifying expert encounter a sudden emergency, a consulting expert may also serve as a backup at trial.

Maximizing the Benefits of Consulting Experts

While there are many reasons to work with a consulting expert, an awareness of the applicable rules and boundaries surrounding these experts is essential. By understanding how a non-testifying expert fits into the case, attorneys can maximize the benefits of working with these consultants while minimizing risk to the case or client.

Understand How Attorney-Client Privilege Applies

Generally speaking, consultants and non-testifying experts are allowed to communicate with an attorney or their client under the protection of attorney-client privilege, if the communications are made on the client’s behalf for the purpose of obtaining legal advice.

The consulting expert is seen as an agent of the attorney or the client, and thus, enjoys similar protections in similar circumstances as the attorney or client would. Typically, protection extends not only to conversations between the consultant-agent and the lawyer but also to fact and opinion work product prepared or reviewed by either the consultant or attorney.

Confidentiality rules generally protect any information shared between consultant and attorney with the purpose of helping the attorney provide legal advice. However, disclosure to a third party may waive the attorney-client privilege if the third party lacks a common legal interest.

Use Discovery Rules Wisely

When an expert witness is to testify at trial, the opinions and reports that witness develops are generally subject to discovery. The work product of a consulting, non-testifying expert, however, can often be protected from disclosure to opposing parties.

Federal Rule of Civil Procedure 26(b)(4)(D)(ii) prevents discovery of facts or opinions held by a non-testifying expert, except on a showing of exceptional circumstances. This protection allows consulting witnesses to work on the case without fear that their opinions or conclusions will become known to opposing counsel. Absent a showing of exceptional circumstances, the consultant’s work remains confidential.

However, while a consultant’s work product is generally not discoverable, U.S. jurisdictions are split as to whether the consultant’s identity is discoverable. For instance, Baki v. B.F. Diamond Construction, 71 F.R.D. 179 (D. Md. 1976), held that the names and addresses of non-testifying experts were discoverable “through properly framed interrogatories,” and that no showing of exceptional circumstances was necessary.

Remember: Disclosing a consultant’s identity poses a potential advantage for opposing counsel. Once it becomes clear your expert will not testify, the other party may deduce that the expert’s results were not favorable for your client. They may then attempt to recruit the expert to their side – which, in some situations, can harm your case.

Avoid surprises in the use of non-testifying experts by understanding what information is and is not discoverable in your jurisdiction and under what circumstances. Informing the consultant can help them take steps to protect vital information as well.

Think Strategically About Testimony

In most cases, a non-testifying consultant expert can take the stand and testify, as long as certain disclosures are made to opposing counsel.

While the need to convert your consultant into a testifying expert may come out of the blue – for instance, if a testifying expert cannot appear due to a sudden emergency – most instances in which a non-testifying expert may end up testifying can be planned for.

When choosing a consultant, keep the option of their testimony in the back of your mind, no matter how unlikely it seems that the expert will actually testify. Doing so can help you choose an expert who is more likely to succeed on the stand.

Also, consider whether the testimony of any expert will be required, or if you can build the case through other means once you clearly understand the technical issues. Some experts charge lower fees for consulting than for testimony, allowing a legal team to control costs while still building a strong case.

With careful planning and clear understanding of confidentiality and discovery obligations, attorneys can benefit from a strong relationship with a non-testifying expert.

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