01 Jul CONSULTING EXPERT WITNESS VS. TESTIFYING EXPERT WITNESSES
How do consulting expert witness pros vs testifying expert witnesses differ? We’re glad you asked. In the realm of litigation, all provide specialized knowledge to inform legal proceedings. But two distinct types of expert witnesses exist: Consulting expert witnesses and testifying expert witnesses. Understanding the differences between these roles is essential for legal professionals and litigants alike.
Consulting Expert Witnesses:
Pros in the space work behind the scenes, providing guidance and expertise to attorneys as they prepare their cases. Primary functions include:
- Case analysis and strategy development
- Review of technical documents and evidence
- Assisting in the preparation of cross-examinations
- Evaluating the strengths and weaknesses of a case
- Critiquing opposing experts’ opinions
The top advantage of consulting experts is that their work is generally protected by attorney work-product privilege. That means their opinions, reports, and communications with the legal team are typically not discoverable by the opposing party, allowing for more candid and exploratory discussions.
Testifying Expert Witnesses:
By way of contrast, testifying expert witnesses, as the name suggests, are brought into court to provide expert testimony. Their roles include:
- Preparing expert reports that will be submitted to the court
- Providing depositions under oath
- Testifying in court and facing cross-examination
- Explaining complex topics to judges and juries
- Offering professional opinions on specific aspects of the case
Unlike consulting experts, the work of testifying experts is subject to discovery. It means that their opinions, methodologies, and the bases for their conclusions must be disclosed to the opposing party.
Top Differences:
- Disclosure: Consulting experts’ work is generally protected from discovery, while testifying experts’ work must be disclosed.
- Court Appearance: Testifying experts appear in court and face cross-examination; consulting experts typically do not.
- Flexibility of Opinion: Consulting experts can explore various theories more freely, while testifying experts must maintain consistency in their stated opinions.
- Relationship with Attorneys: Consulting experts often work more closely with attorneys in developing case strategies.
- Impact on Case: While both roles are important, testifying experts directly influence the court through their testimony.
Choosing Between Consulting and Testifying Experts:
The decision to use a consulting or testifying expert often depends on the case’s needs. Sometimes, an expert may start as a consultant and later be designated as a testifying expert. But this transition must be carefully considered, as it can make the expert’s previously protected work discoverable.
In complex cases, legal teams may employ both types of experts. Consulting experts can help shape strategy and prepare testifying experts, while testifying experts present their findings in court.
Understanding these distinctions is crucial for effective case management and strategy. Both consulting and testifying expert witnesses provide valuable insights, but their roles in the legal process differ significantly. In leveraging these roles appropriately, legal teams can build stronger cases and navigate complex litigation more effectively.
