The use of experienced consultants and experts is commonplace in the modern courtroom. Retaining a consulting, or non-testifying, expert to assist during litigation is beneficial in some cases. It can be critical to the outcome of the case. Consulting experts can be beneficial to a case by helping counsel come to a more thorough understanding of the facts of the case, for instance how a product works or industry standards, etc. They may also help in vetting and hiring expert witnesses that will provide testimony, preparation of depositions of the opposing party’s expert witnesses, and coming up with an overall strategy for litigation.
A consulting expert also provides advice with the benefit of their expertise without having to focus on whether or not they have prior experience testifying on the stand, “likability” factors that must be considered for witnesses going before the judge and jury, etc.
Clients may have personal or past legal reasons for suggesting specific consultants or experts, but the attorney should retain the expert directly as doing so can offer practical benefits while avoiding ethical issues. It can be confusing since the client is typically responsible for payment of the consulting expert’s fees. While the client pays the expert, many attorneys will make sure that the client does not directly communicate with the expert without the attorney present. Doing so would risk admissions, misdirection, and misunderstandings of fact.
It can also be more challenging to protect and preserve privileged communications if the attorney is not included in the interactions between their client and the hired consultant/expert. By retaining the expert, it is easier for the attorney to better preserve the attorney-client privilege aspect of the relationship right from the start. When the client is involved in retaining the consultant directly, there is a risk that the relationship will be characterized as a simple business relationship without the same protections. When an expert is initially retained as a consulting expert, the court should recognize that the relationships hold the attorney-client privilege and associated work protections. Such protections are limited when it becomes reasonably likely that the expert will testify. Due to this precedent (see DeLuca v. State Fish, 217 Cal. App. 4th 671, 690, 158 Cal. Rptr. 3d 761, 775 (Cal. Ct. App. 2013) attorneys should use an engagement letter establishing the purpose of the expert’s retention as consulting or testifying and set forth protocols for communications between the expert, the attorney, and the client.
If you are facing a legal matter and you need to discuss the benefits of retaining a consulting expert, please get in touch with Aronow Law PC. We have the experience and knowledge that you need on your side.