Civil Litigation Legal Topics Litigation Strategy New Lawyers Pretrial Matters

Consulting a Consultant

158183881Do you know the difference between a consultant and an expert witness? You should—it could be to key to a successful case.

A consultant is an expert on a particular subject or issue who (1) doesn’t testify in court and (2) isn’t subject to discovery under CCP §§2034.010-2034.730.

A consultant is an expert, just not an expert witness for trial purposes.

One advantage of using a consultant is that a consultant’s knowledge, opinions, and reports qualify as attorney’s work product, protectable from disclosure. CCP §§2018.010-2018.080. Of course, if you later decide to use the consultant as an expert witness and he or she is scheduled to testify at trial, this protection disappears.

In addition to this discovery advantage, other benefits of using a consultant include that he or she can do the following:

  • Educate you on the issues. A consultant can educate you on issues relevant to the case and recommend books, periodicals, articles, and websites that may help educate you, e.g., a psychiatrist for an emotional distress claim, an accountant for a financial matter, or a computer expert for cases involving technology issues.
  • Help you evaluate the case. A consultant can help you evaluate whether to pursue a claim, or whether you may successfully oppose a claim.
  • Determine the method of proof. A consultant can help you determine whether any elements of the action require proof by expert witnesses, rather than by lay witnesses. For example, if you represent a client in a simple slip-and-fall case, you may not need an accident reconstruction expert to help prove your case. But you may need such an expert to analyze facts and advise you of proof needed in your case.
  • Develop evidence. A consultant can develop appropriate evidence for trial or settlement. For example, in a medical malpractice case, a consultant can inform you about standard hospital procedures and otherwise guide you to appropriate resources.
  • Aid discovery. A consultant can advise and assist you in the discovery phase on the particular elements of the case, e.g. by drafting interrogatories and responses, supplying you with questions to ask at depositions, preparing deponents and trial witnesses, and advising you on what documents to seek through discovery.
  • Help you find electronic evidence. A consultant can advise you on discovery of electronically stored information (ESI), including preliminary discovery to locate ESI, possible types of ESI, and possible locations of ESI.
  • Locate other experts. A consultant can help you locate an expert to testify at trial if the consultant can’t or won’t do so. For example, some consultants may have valuable expertise, but won’t make a good impression in depositions or at trial.
  • Help to prepare for expert examination. A consultant can help you prepare questions for the opposing party’s expert at deposition and trial.

For more practical tips on the use of experts in all phases of litigation, check out CEB’s Handling Expert Witnesses in California Courts. For practical guidance on working with expert witnesses, turn to CEB’s California Expert Witness Guide. CEB also has a great program, Preparing and Examining Expert Witnesses: Reports, Depositions and Cross-Examination, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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