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Are Two (or More) Experts Better Than One?

sb10063567v-001Should you hire multiple experts on the same topic? There are some very good reasons to use this strategy.

If the case justifies the expense, retaining multiple consultants in the same field has a variety of advantages. You can:

  • Have the consultants “compete” and then designate the stronger as a witness to testify at trial;
  • Place primary reliance on the stronger consultant, but designate both as trial witnesses, keeping the other in reserve in case a particular issue needs corroboration;
  • Designate one as the eventual expert witness, keeping the other purely as a consultant in whom you can confide fully and use as a “guinea pig” for testing untried theories; or
  • Have the different witnesses pursue entirely different theories and approaches and wait until the formal CCP §§2034.010-2034.730 disclosure time to choose the expert who will make the stronger, more persuasive witness.

If you use multiple experts in the same field, keep them apart as much as possible. Ideally, each expert shouldn’t even know that any others are on the case. If this is impossible, tell each to avoid contact with the others about the case. Only by maintaining such separateness can you ensure that one expert won’t “contaminate” the other.

When the number of qualified experts is extremely limited (or at least the number available locally is extremely limited), some attorneys contact and retain every available expert, not with the intent of using them all, but to keep them from working for the opposition.

Be mindful that, although the number of experts a party can retain is unlimited, the court does have the power to limit the number of experts that a party can call at trial. Evid C §723. To date, no reported case has dealt with exercise of this power before trial, but several cases have affirmed the court’s limitation of the number of experts a party may call at trial when testimony on a subject has become cumulative. See, e.g., South Bay Chevrolet v General Motors Acceptance Corp. (1999) 72 CA4th 861, 85 CR2d 301.

Need advice on locating and retaining the best experts? Turn to CEB’s California Expert Witness Guide, chapter 7.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

4 replies on “Are Two (or More) Experts Better Than One?”

A “litigation consultant” is a person, with expert qualifications, who enters a confidential relationship with a litigation attorney; the attorney and consultant are free to disclose information to one another without the information being disclosed to any outside parties as long as the relationship is limited to “litigation consultant.”

An “expert witness” is a person, with expert qualifications, who is disclosed as a trial witness or is called as a trial witness (remember, the expert witness discovery procedures are not used in every case). Usually the relationship begins as a “litigation consultant” and may evolve into an “expert witness” disclosed to the parties in the case.

If a “litigation consultant” is disclosed as an “expert witness” for trial, then all communications and writings between the consultant and the attorney are discoverable. So, a lawyer should be cautious in communicating with the consultant.

If time and budget permits, a lawyer might consider sequentially consulting with litigation consultants who have expertise “on the same topic.”

Selection and hiring of a litigation consultant, like courtship, is most effective if done in person. If after meeting with your first consultant, either you or your consultant are uncomfortable with your case, you might consider seeking an additional consultant “on the same topic.”

In my experience, only the consultant with the best fit for the case should be disclosed as an expert witness “on the same topic.” Disclosing more than one expert witness “on the same topic” results in the opposition having more than one shot at undercutting the opinion testimony during deposition. In my opinion the risks and expenses involved in disclosing more than one expert witness “on the same topic” outweigh the theoretical benefits.

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