Effectively Using Non-Retained Experts in Commercial Litigation
by
Robert L. Hill, Esq.[1]
SHUSTAK & PARTNERS, P.C.
July 2013
I. Introduction
Litigants often overlook the value of non-retained expert witnesses in commercial litigation. Yet these witnesses can educate a judge or jury on countless complex topics without the costs associated with a retained expert that may be perceived to be a “hired gun” being paid to provide a specific expert opinion.
II. What is a “Non-Retained” Expert?
Both California and the Federal Rules of Civil Procedure distinguish between retained and non-retained expert witnesses. A retained expert is a witness that is hired by a party for the specific purpose of providing expert opinions. A non-retained expert, in contrast, is anyone else who is capable of providing expert testimony but was not hired for purposes of the litigation.
The most common example of a non-retained expert is a treating physician in personal injury cases. A treating physician is not hired to provide expert witness testimony; instead, their testimony is based on their own treatment of the plaintiff. The physician, therefore, is designated as a non-retained expert so he or she can testify about the plaintiff’s treatment and diagnosis.
But there are many other instances when non-retained experts can and should be used, particularly in commercial litigation. For example, consider a case where a plaintiff alleges one of his investment advisors engaged in financial fraud or unsuitable investments. The plaintiff could call another of his financial advisors as a non-retained expert, allowing the advisor to provide testimony that could be extremely valuable to assist a judge or a jury with understanding complex financial topics. The advisor could not only opine regarding his or her own personal experiences with the plaintiff, but also on the financial industry as a whole, including offering opinions whether the defendant satisfied the requisite standard of care.
III. A Party’s Own Employees Often Are Excellent Non-Retained Experts
Litigants often fail to realize that their client’s own employees can be called as non-retained experts to provide testimony in their field of expertise. For example, when defending a claim for unsuitable investments against a securities firm, a stockbroker of the company can testify about the complexities and turbulent nature of the stock market. Similarly, if an auditing firm is alleged to have negligently performed its duties, the firm’s own employees can explain the generally accepted auditing standards in a common sense way that members of a jury can understand.
IV. Preparing Your Non-Retained Experts for Depositions and Trial
Like any other witness, it is imperative that non-retained experts be properly vetted and prepared for what to expect at depositions and trial. Litigants must carefully review any potential expert’s background and qualifications to ensure they will be qualified to provide expert testimony at the time of trial.
Litigants should also bear in mind that, unlike expert witnesses that are routinely hired to provide expert opinions, many non-retained experts are not familiar with the litigation process. As a result, it is very important to prepare them for what they should expect during their deposition and cross-examination. Mock depositions are a particularly effective method to ensure your non-retained experts are prepared for the tough questions they are sure to face from opposing counsel.
V. Disclosure Requirements
Although non-retained experts are not required to provide written reports in advance of their testimony, parties still must take care to ensure they are properly disclosed as an expert witness.
The California Code of Civil Procedure requires parties to simultaneously exchange the names of all experts, both retained and non-retained, that the party intends to rely upon at trial. Cal. Code Civ. Proc. §2034.210. If the party has retained an expert solely for purposes of the litigation, the exchange must include a declaration from counsel setting forth the expert’s qualifications and hourly rate, the general substance of his or her anticipated testimony, and confirmation that the expert has agreed to testify at trial and will be available to submit to a deposition. Cal. Code Civ. Proc. §2034.260. Although parties are not required to provide such a declaration for non-retained experts, the failure to timely disclose the identity of a non-retained expert will preclude that expert from testifying at trial.
The Federal Rules of Civil Procedure operate in a very similar fashion. Under the FRCP, retained experts must produce a written report containing the expert’s opinions and the basis for them, the facts relied upon by the expert, any exhibits the expert will be using to summarize or support his or her opinions, the expert’s qualifications and publications, a list of all other cases in which the expert has testified in the past four years, and the expert’s hourly rate. Fed. Rule Civ. Proc. 26(a)(2)(B). In contrast, non-retained experts do not need to provide this report; instead, all that is required is a disclosure of the subject matter of the expert’s testimony, along with a summary of the facts and opinions to which the witness is expected to testify. Fed. Rule Civ. Proc. 26(a)(2)(C).
VI. Conclusion
Effectively using non-retained experts can provide significant benefits in many types of commercial litigation. When properly prepared, these witnesses can educate a judge or jury by providing a “big picture” perspective on complex topics. While a retained expert may be construed by the fact finder as a “hired gun” who is being paid to provide a specific opinion, non-retained experts often bring a level of independence that can significantly bolster the credibility of your case.
[1]Mr. Hill is a partner based in the firm’s San Diego, California office. His practice focuses on complex business and commercial litigation, securities arbitrations, including customer and “intra-industry” employment disputes, and civil appeals.