Outside professionals can play a critical role in litigation — particularly in cases involving complex financial or accounting issues. But it’s important to understand that experts can serve two distinct roles as 1) consultants and 2) expert witnesses. And the two should generally be kept separate.

Consultants as Advocates

Consultants’ opinions and communications — as well as the facts or data they rely on — are generally protected against discovery except under extraordinary circumstances. This gives you the freedom to share information with consultants and seek their opinions on sensitive issues without fear of revealing your strategies to opponents.
Thus, consultants may be well suited to:

  • Evaluate the strengths and weaknesses of your case,
  • Assess the potential impact of “bad facts,”
  • Advise on areas where a testifying expert’s opinions or methods are susceptible to challenge by opposing attorneys or their experts,
  • Assist in developing strategies and lines of questioning for deposing or cross-examining the opposing experts or other witnesses, and
  • Investigate multiple avenues of attack and help your testifying expert focus on the most relevant issues and evidence.

Consultants who won’t be designated as expert witnesses can be valuable members of a litigation team. To ensure that consultants’ work and communications are protected, an engagement letter should spell out their roles and responsibilities carefully.

Independent Experts

In contrast, expert witnesses explain complex issues and concepts to the judge or jury if the case ultimately goes to trial. Once an expert is designated an expert witness, much of this person’s work product and communications — as well as information the expert considers or relies on in forming an opinion — becomes discoverable by other parties. Some protection may be offered by the attorney-client privilege or the attorney work-product doctrine. But an expert witness designation can expose certain communications or materials to discovery that would otherwise be privileged.

For example, Federal Rules of Civil Procedure (FRCP) Rule 26(b)(4)(C) protects communications between attorneys and testifying experts — except to the extent they “identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed” or “identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.”

Key Distinction

Sometimes litigants will initially engage experts as non-testifying consultants. Later, they may designate the same experts as testifying witnesses if their opinions, communication skills and credibility are satisfactory. However, there may be significant advantages to engaging one expert as a consultant to act as a behind-the-scenes advocate while a different independent expert testifies at trial.

TheKFORDgroup litigation team holds extensive knowledge and experience in expert witness engagements, forensic accounting, and business valuations.  Our experts are trained and experienced in the litigation process.  We have the extensive experience in various legal contexts and business valuations.   We can assist you and your client as either a Consultant or Expert Witness for their legal matter.    For more information, please call us at 210-340-8351.

Additional information included in this report was provided by PDI Global / Thomson Reuters © 2023

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