January 24, 2012
P. Demot O’Neill, CPA/ABV, CFF, CVA, CFFA
Consulting experts can be critical to successfully making your case in court. However, it’s important to understand the difference between consulting and testifying experts. While both can make important contributions to your litigation team, they fill different roles.
According to Black’s Law Dictionary, a consulting expert is “an expert who, though retained by a party, is not expected to be called as a witness at trial. A consulting expert’s opinions are generally exempt from the scope of discovery.” Compare this with the definition of a testifying expert as “an expert who is identified by a party as a potential witness at trial.”
The consulting role
When you engage a consulting expert, you define his or her role based on the needs of the specific case. Attorneys often engage consulting experts to help them understand technical subjects, such as damages estimates or business valuation. Or they may hire consulting experts to help them interpret the analysis and opinions of the testifying expert. Sometimes consulting experts are even asked to assist attorneys in hiring testifying experts.
Less frequently, consulting experts are retained to “sway” the opinion of a testifying expert. To paraphrase one attorney, engaging a consulting expert is like hiring a young associate — except the expert understands technical issues.
Common goal
It’s best to engage a consulting expert near the start of the litigation process to assist you with discovery requests. In fact, one plaintiff’s attorney we’ve worked with will not file a complaint until his consulting expert evaluates the potential claim.
Other things you can do to help ensure you get the most from your expert include:
- Making sure the expert is experienced and knowledgeable about the type of case and issues involved,
- Being clear about your needs, putting them in writing and not beginning work until the expert has agreed to them, and
- Keeping in mind the rules of discovery should the consulting expert become a testifying expert.
When consulting experts become testifying experts, their work product and communications — even those made under assumed privilege — are discoverable as if they were initially engaged as testifying experts.
When things get tricky
Even if you clearly define your consulting expert’s role, issues may arise. For example, consulting experts can have tricky relationships with testifying experts — particularly when their knowledge and experience differ.
If you engage a consulting expert who is a CPA, but not a credentialed valuator, to assist your testifying expert in business valuation issues, they may have trouble communicating with one another. The consultant may not understand enough about the conceptual underpinnings of valuation theory to be effective in his or her role. When this situation arises or your case is particularly complex, you may even want to engage more than one consulting expert.
Another potential pitfall is when a consulting expert tries to act as an advocate for the client by suggesting results and methodologies beyond professional standards or the fact pattern of the case. The testifying expert needs to maintain objectivity. So you may find yourself in a position where you must evaluate divergent consulting and testifying expert opinions.
Need for expertise
Consulting experts and testifying experts serve different roles and are subject to different discovery requirements in a case. Individuals serving in either capacity need to be completely familiar with each service.
Case in Point - Issue 4