Differentiating Between Testifying & Consulting Experts
Every legal team hones their ability to maximize the effectiveness of expert witnesses. While there are many ways to collaborate with an expert, some attorneys find it helpful to first distinguish between a consulting expert and a testifying expert.
On a recent episode of Discussions at the Round Table, Utilizing Expert Witnesses in International Law, we spoke with Bill Shawn about how he approaches these two categories of experts. Bill is the co-managing partner of ShawnCoulson LLP, representing a variety of national and international corporate governmental lobbying law firm and trade association clients throughout the US.
Bill talks about using experts, “I am a greater believer in consulting experts. The benefits of a consulting expert are that their work, and their work product, are protected by attorney work product and client privilege.” This major difference removes disclosure requirements that would otherwise exist under Rule 26 of the Federal Rules of Civil Procedure. When further explaining why consulting experts are such a great fit within his practice, Bill says, “They [consulting experts] are usually the people that we like to use who roll up their sleeves, dig in and do a terrific amount of, shall we say, homework and spadework.”
On the other hand, testifying experts are also critical and the selection process should be thorough and deliberate. Bill explains, “When we look at testifying experts, we look for people who are going to connect with the jury and hopefully also connect with the judge. When that connection occurs with a testifying expert, it is a thing of beauty and I have had instances where a testifying expert spent hours instructing the jury on the ultimate issues in the case. In one episode, even the judge was asking the expert questions.” This speaks to the expert’s ability to engage an audience and communicate ideas in an interesting and illuminating fashion.
The relationship between consulting and testifying experts is not one that is mutually exclusive. Bill expounds, “The other thing that we find with testifying experts is that the reports are critical and many of them need a lot of help doing their expert reports, especially in a damages case…We do like to engage our experts as early as possible to be able to bring them along. That’s why having a consulting expert can be so helpful.”
This distinction that Bill makes between testifying and consulting experts is an important one. It is a decision that many of our clients must consider early in the retention process. As an expert witness search and referral firm, it is our job to find the ideal expert and add the value of assisting our clients with this decision-making process. This is why we were so excited to speak with Bill about the important distinction between experts. We implore you to listen to our conversation with Bill Shawn on our podcast, Discussions at the Round Table. We were honored to speak with him and hope that you find our conversation most informative.
For those that are unfamiliar with Round Table Group, for more than 25 years, we have helped litigators to locate, evaluate, and employ the best and most qualified expert witnesses. Round Table Group is a great complement to any litigator’s quest for an expert witness and our search is always free of charge. Start your expert search now.