Key considerations when using expert witnesses

For many types of cases, expert testimony can be crucial. A strong expert witness can help simplify complex issues, increase leverage in settlement discussions, and establish credibility for a client's arguments at trial. Attorneys thus often rely heavily on experts and may even involve them in every aspect of the case from start to finish, including case strategy.

However, as the expert is neither the attorney nor the client, the protections afforded in the attorney-client relationship may not apply in the same manner to discussions with experts. Accordingly, while the expert may of course review a substantial amount of information in formulating her or his opinions, there can be a risk that the attorney-client privilege or work product doctrine will be deemed waived depending on the protections employed or steps taken.

There are a number of other potential issues that arise when using experts that, without taking appropriate precautions, can trip up even experienced litigators. Below are some tips for limiting the risks associated with expert witnesses.

Consider Having Counsel Hire the Expert

Because the client is typically responsible for most costs associated with a representation, it may seem appropriate and logical for the client to hire the expert directly. In addition, for clients that are regularly involved in litigation, they may already have a relationship with an expert or consultant that they wish to use in a matter.

While the client may certainly be the ultimate decision-maker regarding the use of an expert, there are practical and ethical reasons for the attorney to retain the expert. Where the client directly retains the expert, there may be a tendency for the client to communicate with experts or consultants without the involvement of counsel. Although the client may believe that communications with the expert are no different than communications with its attorney, it can be much more difficult to protect privileged materials if communications without attorney involvement become commonplace. To limit this risk, attorneys can consider implementing communication protocols for experts.

One place to confirm the roles and responsibilities of the client, expert and attorney is in an engagement letter or fee contract with the expert. This documentation can confirm the identity of the client, which party has responsibility for payment of fees, with whom the expert should communicate, and any other protocols for the retention.

Ethically speaking, by having the attorney retain the expert, the relationship with the expert may be more likely to be considered covered by the attorney-client privilege from the beginning. If a client retains the expert directly, there may be a risk that the relationship will be characterized as a business one rather than a legal one.

Don't Forget Conflicts

While attorneys may run conflicts when opening a matter and even when new parties are added to a case, there can be a tendency to forget to run conflicts when retaining an expert.

Conflict issues relating to an expert can arise in a number of ways. For example, if a consultant is retained to provide an opinion on the value of an asset that is subject to a sale, and it is later determined that the consultant was involved in litigation with one of the law firms in the new representation, those facts could undermine the opinion provided by the expert.

Separately, if the consultant or expert has other relationships with either the client or the law firms involved in the matter, those relationships could be the subject of discovery and claims of bias, even if the relationships do not give rise to a legal conflict of interest.

Prior to retaining an expert, it is helpful to consider any and all information that might be relevant to the expert's effectiveness. Because clients often rely on attorneys to recommend experts, any problems in this regard can reflect poorly on the attorney's judgment.

Consider the Differences Between Nontestifying and Testifying Experts

In addition to the traditional testifying expert, attorneys often use a nontestifying expert or consultant to assist with respect to complex or technical issues. Nontestifying experts are typically not subject to the disclosure obligations of Federal Rule of Civil Procedure 26, which means that they typically do not have to prepare reports.

Moreover, except for in limited circumstances, the facts known and opinions held by a nontestifying expert are not discoverable. Communications with a nontestifying consultant are also often protected by the work product doctrine, because such communications are often in anticipation of litigation (or, more likely, during ongoing litigation).

The rules are different for testifying experts but, although not to the same extent as nontestifying experts, there is still protection for the work product and communications of testifying experts. In 2010, the Federal Rules of Civil Procedure were amended to provide greater protection to draft expert reports prepared by testifying experts. In addition, communications between an attorney and a testifying expert may be protected in most circumstances, except to the extent the communications relate to certain topics, such as the compensation received by the expert.

However, different rules may apply in state court litigation. Depending on the jurisdiction, draft expert reports may need to be produced in discovery or there may be more limited protections for communications between attorneys and their retained experts.

In particular, the rules in California regarding the use of expert witnesses contain significant differences as compared to the federal rules. Most notably, draft reports are generally discoverable in California and there may be more uncertainty regarding whether communications with experts are protected under California law.

Thus, before even retaining an expert, it is helpful for attorneys to identify the rules of the jurisdiction with regard to expert testimony and discovery. That will allow the attorney to adjust how an attorney uses and communicates with experts and, in doing so, avoid letting testimony intended to strengthen the client's case turn into a potential weakness.