USING EXPERT WITNESSES TO RESOLVE COMPLEX ISSUES AND PROVIDE INDEPENDENT PERSPECTIVE
Expert witnesses are indispensable in complex litigation, particularly in sophisticated financial and multijurisdictional disputes. There are three types of expert witnesses. First, consulting experts, who provide advice and analysis to lawyers as they investigate and prosecute (or defend) the case. Second, testifying experts, who testify at trial to enhance the jury’s understanding of complex issues requiring specialised knowledge to understand. And third, foreign law experts, who advise parties and the judge on matters of foreign law. A consulting and testifying expert sometimes are the same person, but potential disclosure issues may arise if this is done.
Litigants who involve experts early in a case can benefit enormously from their outside perspective, which can inform many aspects of case strategy, including discovery and settlement. This article explains the roles these three types of experts play and certain key rules applicable to their work.
Consulting experts
In many complex cases, the first type of expert retained is a ‘consulting’ or ‘non-testifying’ expert. As these words suggest, such an expert does not testify at trial (or provide a report). Rather, the party retaining the expert consults with the expert to help understand complex aspects of the case within the expert’s area of expertise, which allows the party to better evaluate the case’s strengths and weaknesses.
Both plaintiffs and defendants often retain consulting experts. It is not unusual for a plaintiff to do so before filing a case, to investigate the merits of its claims and possible damages. For example, plaintiffs investigating a complex fraud may retain a forensic accountant or similar expert to understand how the fraud worked, who was involved and what happened to stolen funds.
Jul-Sep 2023 issue
Friedman Kaplan Seiler Adelman & Robbins LLP