Using the Non-Testifying Expert

Most of us think that experts are mainly utilized for live testimony at trial or deposition. However, non-testifying (or consultative) experts may also be employed in a case for a variety of purposes.

Expert Selection – Using an expert to vet a potential expert you are considering hiring is an excellent practice, assuming that the first expert you hire is impartial (i.e., not influenced by his or her potential future hiring).

Review of Publications – While most attorneys are generally familiar with the titles of prominent technical publications, an expert can tell whether a particular publication is “real” as well as its relative professional significance.

Review of Professional Credentials – Similar to the review publications listed on a particular opposing expert’s CV, a hired expert can “translate” for the attorney the meaning of other resume and/or CV items (e.g., the strength of a particular academic program, the professional perception of a particular conference the expert claims to have attended).

Role Playing — This is particularly useful, if the expert you hire has previously testified as an expert against the expert your opponent plans to use at trial.
Aside from the above uses of an expert, under what circumstances might one use a non-testifying expert? What if your expert simply is not comfortable with the pressures associated with testifying? What if your expert’s rates for live testimony (as opposed to consultation) are cost prohibitive? What if your expert’s availability prevents the expert from being available for trial? In any of these circumstances, use of a consultative expert may be the solution.

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