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Discovery Matters with Non-Testifying Expert Witnesses

While there are many experts hired for a case used within the walls of a courtroom, there are some that have been retained to provide assistance or details about the subject of the case that deals with a specific field of expertise.

Not all those obtained for this experience and knowledge have to testify in an open courtroom or at a deposition. When one such person is considered a non-testifying expert, he or she is also known as a consultant. These professionals are frequently invaluable even when they are not testifying as they are still providing assistance with the case through their chosen field.

Advantages of Consultants in Cases

One advantage of these persons in a case is to assist the lawyer in hiring other expert witnesses that will be testifying in the courtroom. Because they have authority in the same field of study, these consultants are better at accurately vetting the expert witness than a lawyer would be as the legal representative has less understanding or experience with the subject matter. After the testifying expert has been chosen, the consultant may review
his or her studies, examinations, conclusions and details for both accuracy and reliability for the case or deposition. This means the consulting professional may provide assistance so that the witness may withstand cross-examination by the opposing legal counsel.

Additionally, if the expert witness that has been chosen to testify cannot for any reason perform his or her duties, the consultant may take his or her place or supplement the testimony when some has been provided. However, if this is not needed, the consultant may be selected based entirely on his or her knowledge of the subject matter and skill set in the chosen field. For those that must testify as an expert witness, they must be professional, friendly and understandable for the jury panel or judge. When a consultant has the knowledge and details needed for the case but cannot perform duties based on these factors, another may be utilized in the courtroom.

Discovery Rules and Consultants

It is usually beneficial that a consultant is not testifying in a case. This may be due to the discovery rules that impact the claim filed. This is often due to the consultant’s work not being forced to be disclosed to the opposing legal counsel when the testifying expert’s product work, notes, opinions and similar details are all discoverable. There is a rule that stipulates that no discovery about the facts, opinions or documentation of a consultant is necessary when he or she is not to be called as a witness in a trial unless there are exceptional circumstances involved in the case. This means the lawyer has access to information and experience that the opposing lawyer does not in these instances. The consultant becomes part of the legal team.

However, when the work product of a consultant is not discoverable, it may be necessary that he or she disclose his or her identity depending upon the jurisdiction involved. In contrast to this, one specific case in a court did hold that a non-testifying expert’s identity is protected from being disclosed when no exceptional issues arise. There may be other cases that cause this to become complicated and a lawyer may have additional issues to deal with in those situations.

Discovery Advantages for Consultants

There are many discovery advantages for non-testifying experts, and it is vital that these circumstances are treated with caution so that identities may be protected even if the work product of these individuals is subject to discovery in cases when certain circumstances occur. Various instances of a consultants use may provide manners in which evidence may be discovered, details are obtained that strengthen the case and similar matters. These advantages provide the legal team with more chances of success both in the case as well as with hiring additional expert witnesses. This means the possibility of a favorable outcome in the case when a consultant has been obtained is more likely. Non-testifying experts may be used in various manners that provide additional advantages such as when the expert witness has a narrow range of expertise in the subject matter. The consultant may provide assistance in understanding what may be needed.

It is important that the lawyer hired for the case understands the uses of both consultants and expert witnesses. He or she should ensure that if a consultant increases the chances of success that one is hired for the case in the field involved in the incident.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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