An important distinction should be made between expert witnesses and litigation support consultants. These are two separate roles, requiring litigating attorneys to hire different individuals for each role. Once someone crosses the line between expert witness and consultant, they generally cannot go back, because the consulting role may compromise an expert witness’s perceived objectivity.
Expert or Consultant — But Not Both
An expert witness is a neutral third party who generates an independent professional opinion about a technical matter. For example, financial expert witnesses might appraise business interests, quantify lost profits, or compute losses from employee embezzlement. These experts typically write a formal report that summarizes their findings and may testify in court if the parties can’t reach a settlement based on their conclusions.
Serving as a qualified expert witness requires specialized training, experience, and licenses or credentials from professional organizations. Many expert witnesses are strictly bound by the procedural and reporting requirements of the professional organizations to which they belong, as well as the Federal Rules of Evidence (or any local rules of evidence that may apply).
By comparison, a litigation support consultant won’t serve as an expert witness for your case. Instead, he or she will support you and your expert witness (or witnesses). A financial consultant is free from many of the procedural and reporting restrictions that professional and legal standards impose on testifying experts. For example, he or she might test alternate paths of determining damages without being legally bound to disclose those analyses to the opposing side.
While the modified Federal Rules of Evidence don’t technically require expert witnesses to disclose draft reports, consultants can create limitless memos, drafts and exhibits for use internally without fear of inadvertently tripping into an area of discovery. Further, some jurisdictions don’t follow the Federal Rules and still require disclosure of drafts from expert witnesses.
The Role of a Consultant
Consultants do more than provide second opinions. They manage the expert witness portions of your cases. As expert witness “managers,” consultants can review the technical merits of expert witness draft reports, suggest changes, and discuss concepts, theories, and strategies with you. They can help you develop deposition, direct examination and cross examination questions for all experts that will testify.
Additionally, a consultant can review an opposing expert’s report, as well as review your expert witness’s rebuttal report. Unlike an expert witness, your consultant can review documents that might turn out to be detrimental to the client without the fear of producing those documents to the opposing side. The consulting expert might also look into issues beyond the scope of the expert witness’s expertise, such as whether one spouse is hiding income or asset from a business in a divorce or whether a shareholder is filing false income tax returns. If your expert witness considers these issues, his or her findings may be subject to discovery by the other side.
Most consultants actively participate in your strategy meetings. They help develop case theories and realistically evaluate various settlement options and alternate damage calculations. A consultant’s input might lead you to seek a lower settlement or, in some cases, withdraw the suit altogether. Or a consultant’s analyses could lead to a higher claim than you originally thought was supportable.
Protect Privileged Information
A key benefit of using litigation support consultants is that their work products and communications will be protected under attorney-client privilege. To preserve this privilege, litigating attorneys should engage and pay consultants directly to avoid any argument that the client engaged the consultant.
Also minimize direct communications between the consultant and expert witnesses. The Federal Rules of Evidence permit discovery of work product created by or shared with a consultant only under “exceptional circumstances.” One of those circumstances is if the consultant provided information considered by a testifying expert in forming an opinion. Another is when the consultant and the expert witness collaborate to form an opinion together.
So, all communications should go through the attorney to preserve attorney-client privilege and the perceived objectivity of your experts.
Put a Consultant on Your Team… and Score
Using a consultant to manage the expert witness portion of your case may seem like a superfluous expenditure, especially when litigating small claims. But litigation support consultants help you get the most out of expert witness testimony and keep everyone focused on financial issues — including ways to cut your losses when the case isn’t going well and to finesse your strategy to improve your client’s financial position. In big and small cases, consultants often turn out to be a valuable player on the litigation team.
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