What’s the Difference? Testifying vs. Consulting Experts
By Noah Bolmer
Attorneys engage expert witnesses in two broad categories: testifying and consulting. Each serves an important but distinct role, and one can even become the other. Here, we take a look at some of the key differences between the types of experts.
Authority
In Federal jurisdictions—and in the majority of states, having adopted similar rules—expert witnesses are governed by Federal Rule of Evidence 702. Rule 702 sets forth the criteria by which expert witnesses are deemed qualified and competent. The rule specifically addresses testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. [emphasis added]
Therefore, it does not necessarily apply to pure consultants. Nevertheless, attorneys will typically hire experts that are vetted as though they will testify, as changing roles is a common occurrence, and most experts can work as both types depending on the needs of the client.
Consulting Experts
When the trial team lacks sufficient understanding in one or more areas that impact their ability to effectively represent their client, they can bring in a consulting expert. These experts can assist in a broad range of areas, including:
Case Materials Analysis: Where there is an abundance of technical or specialized detail in the case materials, consultants can meticulously comb through to uncover any important details that the trial team would otherwise overlook.
Technical Expertise: Consultants can be brought in to explain and simplify complex fields to attorneys who may lack sufficient background to develop an effective strategy.
Strategy: Consulting experts may find exploitable weaknesses in opponent expert witness testimony.
Assist With Testifying Experts: Well-qualified consultants can help identify, vet, and prepare testifying experts.
Attorney Bill Shawn describes consulting experts:
I am a great 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. There are no disclosure requirements that otherwise exist under Rule 26 of the Federal Rules of Civil Procedure. They 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 experts’ spadework.
This is the main differentiator between consulting and testifying experts. Rule 26(a)(2) makes discoverable the identity of witnesses “it may use at trial”. Additionally, it requires an expert witness report only when “retained or specially employed to provide expert testimony”.
Economics expert Dr. Michael A. Einhorn has worked as a consulting expert for the DOJ, noting some of the advantages:
Acting as a [consulting] in-house economist at the Department of Justice gave me [the opportunity] to work with lawyers where our communications were protected. It is here possible to have detailed conversations with lawyers and parties, hear the ups and downs of the particular case, and offer insights that are not discoverable in court. The Department of Justice often uses inside work and then proceeds to hire outside counsel to testify to the soundness of its argument. The DOJ economists often stayed off the witness stand and therefore could maintain privilege.
Testifying Experts
Whether writing reports, surviving depositions, or undergoing cross-examination, testifying experts are what typically comes to mind when most people think of “expert witnesses”. Attorney Shawn describes their importance in jury trials:
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. It was an IP case about trade dress–type issues so when we choose a testifying expert, we want somebody who has that kind of rapport, communication ability, and has a degree of humility to be able to connect with the jury.
As opposed to consulting experts, testifying experts have not only to be knowledgeable, but they must have the right demeanor in court. He continues:
We have had good ones and we have had bad ones. We had one in a federal jury trial in California in a patent case who was a former head of the Patent Office and he was so busy with other things and highly uninvolved that he did not even know the name of my second chair who was taking him on direct examination. It was embarrassing, so suffice to say, we never used him again. 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. Once again, it is key to find that right person, that right personality, that right bearing that is going to play well with the jury.
Some experts have a strong preference for testifying. Safety expert John Lauhoff states, “I like being a testifying witness, [because] that will actually go in front of the jury. A consulting witness is just someone who provides information to the testifying expert.”
Changing Roles
Even when brought in as a consultant, experts routinely end up testifying due to changes in trial strategy, or unforeseen circumstances. This triggers Rules 702 and 26, opening the former consulting expert up to challenges and discovery.
Sports Management expert Professor Gil Fried always prepares as though his role will change:
[E]very time I’ve been retained, it’s been under the assumption I’m going to be testifying at trial, and that is my perspective that I’m not going in as just a consultant. I’ll consult with you throughout the entire process, but I’m running this like I’m going to be testifying [asking myself] “How would this appear if it went to trial? How would my deposition appear if I’m faced with it?”
Being prepared for a change is always a good policy. Water resources expert Dr. David Williams was the only person ready and able to fill a testifying role in one case:
As a consulting expert, my work is not discoverable. That information is privileged to my side or my attorneys. I can be free with my discussions and correspondence and not have to knock off the back-and-forth of ideas. [. . .] I have had it where the testifying expert was not able to testify because of her illness. Guess who had to become the testifying expert? They had to get someone able to talk about it, otherwise, they wouldn’t have had somebody able to talk about it. They amended their motion [to say] I was now the testifying expert instead of just our consulting expert. You must be prepared.
Fire code expert John Catlett describes an engagement where his role would have changed, had there been a trial:
[In one case] the ladder had come off a building and someone had fallen and got severely injured—and it was a maintenance ladder that was to be permanently affixed. Well, I was dealing with the issue of the bolts, and so I was the consulting [expert] in that role. However, if it went to trial (and this one did not), I would probably have ended up going in and actually testifying about what my findings were. Sometimes you can start off kind of as a consulting witness, and then next thing you know, you’re actually being deposed or you’re actually in front of the judge.
Birds of a Feather
Despite the numerous differences, the roles are not altogether dissimilar. Insurance expert Thomas McCloskey finds both types of engagement fulfilling:
I enjoy doing them both. I have been retired for 10 years now, and I do this because it keeps me involved in my profession. It keeps the gray matter stirred in my head and forces me to keep up with the industry. [. . .] They both require me to take the same steps. I need to see the file material. I need to read, annotate, internalize, and prepare to be asked anything within the four corners of the litigation. Preparation requires a large amount of reading and note-taking. I need to know the case well—and sometimes better than the attorney.
While they fill different needs, both consulting and testifying experts help unravel complex topics. The difference is in the audience, and it is important to be prepared to testify, even if you are brought in as a consulting witness.
For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!