Experts have various jobs in a case. They can assist with (i) assessing the value of a case; (ii) formulating claims, counterclaims, and defenses; (iii) drafting discovery requests and responses; (iv) reviewing documents; (v) challenging the other side’s experts; (vi) developing and refining case strategy; (vii) identifying, evaluating, and calculating damages; (viii) evaluating and responding to opposing claims and theories; and (ix) aiding the factfinder through trial testimony.
While experts have many different possible uses, under Federal Rule of Civil Procedure 26(a)(2) and (b)(4), experts fall into two general categories: consulting experts and testifying experts. A consulting expert has been retained or consulted with by a party in anticipation of litigation or trial, but who will not testify at trial. A testifying expert, on the other hand, may be used at trial to present evidence. Generally, no information about consulting experts is discoverable while testifying experts are disclosed to the other side and involved in pre-trial discovery.
While expert needs can evolve over the life of the case, it generally makes sense to retain an expert as early as possible to help with case strategy.
A testifying expert’s qualifications are almost always challenged. At the outset, an attorney should review a potential expert’s qualifications and experience to make sure that the expert has substantive expertise in the relevant subject matter and no prior reports or testimony conflict with the case the expert is currently being considered for. Additionally, it is absolutely critical to review an expert’s history of Daubert challenges and disqualifications. Obviously, if the potential expert has been criticized or disqualified in a similar case or subject matter, the expert likely shouldn’t be retained.
Under Rule 26 of the Federal Rules of Civil Procedure, in addition to the disclosure of the expert witness’s qualifications, publications, testimony, and compensation, the expert report must contain a complete statement of the expert’s opinions, the data of other information considered by the expert in forming such opinions, and any exhibits that will be used to summarize or support the expert’s opinions.
Rules differ across jurisdictions, so attorneys need to know the rules that govern in a particular case. For example, sometimes an expert witness’s draft reports are shielded from discovery, but in some jurisdictions draft reports are not. But even when communications between a party’s attorney and an expert witness are protected, there are three exceptions: communications that(i) relate to the expert’s compensation; (ii) identify facts or data that the attorney provided and that the expert relied on in forming opinions; or (iii) identify assumptions that the attorney provided and that the expert relies on in forming opinions.
A testifying expert can be deposed by another party in the case. Deposition questions usually cover an expert’s qualifications, analysis, methodology, report, and key assumptions, including rejected analyses and unused information. Opposing counsel often use depositions to narrow the scope of an expert’s testimony by confirming what the expert is not going to testify about at trial.
In federal court and most state courts, the trial judge provides a gatekeeper function and will apply the Daubert standard to determine whether an expert’s testimony is based on scientifically valid reasoning and whether it has been properly applied to the facts at issue. The Daubert standard has five factors:
Anything the expert says at the deposition can be used to impeach the expert at trial so the deposition testimony must be consistent with the expert’s anticipated trial testimony.
