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Can a Non-Retained Expert Witness Be Compelled to Testify at Deposition?

Can a Non-Retained Expert Witness Be Compelled to Testify at Deposition?

Trials can be highly complex processes. Whether they’re civil cases determining the fault of two homeowners in a dispute, or criminal trials trying to prove the guilt of people suspected of heinous crimes, there are a lot of factors that come into play.


One of those factors is an expert witness.


Expert witnesses can have a major impact on just about any case, but since they’re not as conventional as factual witnesses, some individuals get a little confused about the specifics regarding their use and what the court can require of them.


Today, we want to cover a very specific situation regarding whether or not a non-retained expert witness can be compelled to testify.


We’ll go over what an expert witness is, what a non-retained expert witness is, what they do, and of course, whether or not they’ll be compelled to testify during deposition and why.


Let’s get started.


What is an Expert Witness?


When you think of witnesses in court cases, you most likely think of factual witnesses. Those are people who were around when the event in question unfolded, or they have experience with one or more of the parties involved in a way that can help determine what happened.


Factual witnesses can be just about anyone. They just have to be associated with the events in question.


However, there is another type of witness; the expert witness.


An expert witness isn’t typically someone who has anything to do with the events being debated in court. They usually don’t know anyone involved, and they most likely weren’t around when the event unfolded.


Instead, they’re witnesses who are experts in a specific field relevant to the case. For example, if someone had a mental breakdown and went on a shopping spree bouncing checks, the defense might bring in an expert witness who specializes in mental illness. That expert witness might use their knowledge of mental illnesses to explain to the court that such impulsive behaviors are often triggered by mental illnesses, and they’re very hard to control. That might be a tactic used to get the defendant a lighter sentence than what they would get if the court couldn’t find an excuse for their behavior.

Of course, expert witnesses can come from all kinds of fields. They can be construction experts providing insight into proper construction practices, medical professionals who can describe the effects of certain injuries, etc.


There are a lot of requirements that expert witnesses have to meet. They typically need to be professionals in their field for many years, have an extensive educational background, and typically need to be heads of their field with high-profile accomplishments. Legal teams don’t just hire first-year doctors or other fledgling professionals to testify on their behalf.


However, expert witnesses are also non-biased entities. The legal team hiring the witness can’t coax them into going against their experience to support the team’s argument or anything like that. All information provided must be determined by first-hand experience in the field; that makes hiring an expert witness a complicated task.


What is a Non-Retained Expert Witness?


A non-retained expert witness is very similar to just a standard expert witness. Except, some of the details are a bit different.

With a normal expert witness, the legal team will pay a retainer and keep the witness onboard throughout the trial. They’ll participate in the deposition, and usually, they’ll testify during the trial, too. They can also act as non-testifying expert witnesses who guide the legal team with its argument.


With a non-retained expert witness, the role of the expert is a little different.


A non-retained expert witness is usually connected to one of the parties; usually, that’s the defendant. For example, a defense team might pull in the psychiatrist who has been treating their client for the last few years to have them speak about the different behaviors the client has demonstrated or something else relevant to the case.


In this situation, the expert witness is not bound by the usual rule that all information provided must be from first-hand experience with the field they work in; it can be information pertaining to the client personally, opinions on the client’s circumstances, and various other factors.


This gives non-retained expert witnesses a lot of leeway in the courtroom, and they can be extremely beneficial. They’re also not a hired member of the legal team.


However, this leads us to the question of the day; does a non-retained expert witness have to testify during deposition? Can they be compelled to if they don’t want to?


Let’s take a look at that.


Non-Retained Expert Witnesses and the Court


With a standard expert witness, the witness must testify during the deposition if the judge orders it; as long as they’re not a non-testifying expert witness who functions as more of a counsel than a witness. Failure to do so can have major consequences, and also, the testimony offered during the deposition will be scrutinized to make sure it stands up to both courtroom standards and the subsequent trial testimony.


Does a non-retained expert witness have to testify during deposition, though? They’re not a conventional expert witness hired as an outside resource for the legal team. So, are they held to the same standards?


Well, while non-retained expert witnesses typically enjoy more freedom in the way that they interact with the court, they are still held to certain standards. One of those is that the court can compel them to testify during deposition; even if they would rather not testify.


There are numerous reasons for this.


Their Testimony is Crucial to the Case:


Let’s say that the non-retained expert witness is the plaintiff’s physician, and the trial is set to determine whether or not the plaintiff’s injuries are ones that would be cause for the lawsuit they’re bringing against the defendant. Maybe the defendant is someone that the expert witness doesn’t want to be involved with, or perhaps they just don’t want to bother with the court at all.


However, they hold crucial information to the case since they are the ones who treated the plaintiff’s injuries.


They can be compelled to testify during deposition, and the opinions and personal experiences that they relay to the court will be entered into evidence just like everything else.


Their Statements are Called into Question:


It’s not uncommon for doctors’ statements and diagnoses to be brought into court as evidence. So, we’ll use the same example for this one. Maybe the plaintiff’s physician diagnosed their injury and developed their treatment plan. The plaintiff’s legal team entered that information into evidence, and now the court deems it necessary to have those pieces of evidence explained.


The court can compel them to testify and provide more insight into their findings.


The Opposing Legal Team Does Not Want Them to Testify:


Sometimes, an expert witness might have information that could help the opposing team, and the legal team of the attached party doesn’t want them to testify. Let’s say that the expert witness is a close friend who holds the knowledge of the party doing unsafe things when the event occurred, and that’s why they needed the treatment in the first place.


Well, the defendants might propose that they be compelled to testify about what happened.


Do Non-Retained Expert Witnesses Have to Be Compelled to Testify?


Typically, if a non-retained expert is deemed useful by a party’s legal team, the legal team will approach them about participating in the case, and there shouldn’t be much problem getting them to testify; there’s also rarely a reason to not want them to testify unless unsavory information comes out.

So, they will usually be brought in as witnesses knowing full well what is expected of them.


What Special Privileges Do Non-Retained Expert Witnesses Have?


So, what makes non-retained expert witnesses so sought-after anyways? They’re not hired on by the legal team. So, why not just go with a standard expert witness?


Well, that comes down to how the two are allowed to operate in court.


An expert witness who is retained by a legal team is only allowed to utilize factual, experience-based, information relevant to the case.


For example, a physician who is an expert witness testifying in a case where the plaintiff is saying a compound leg fracture has kept them out of work for two years would have to use their experience to support that. They would say something along the lines of “In 2015, I operated on a serious compound fracture in the leg of another patient, and despite it being set properly and given ample time to heal, residual, crippling pain needed to be treated for three years after.” They couldn’t say “I believe it is possible for this injury to keep causing pain past the normal healing period. I’ve heard of it happening in other cases.”


With a non-retained expert witness, that’s not the case.


Non-retained expert witnesses can rely on their personal experience, but they can also opine on various aspects of the case.


For example, a psychiatrist trying to prove that one of the parties could have little control over impulsive behaviors wouldn’t be stuck quoting personal experiences throughout their career. They could cite events that have happened elsewhere that other psychiatrists have helped treat, statistics that are relevant, and various other bits of information. They could then turn around and provide an opinion about whether or not it’s possible that the person on trial could have suffered from the same thing; thus, helping prove that they have an excuse for their behavior.


This ability to opine on topics and not strictly adhere to personal experience makes it much easier to find an expert witness who can convincingly support a legal team’s case.


Limits of Non-Retained Expert Witnesses


Non-retained expert witnesses might have a little more leeway with how they interact with the court, but that doesn’t mean it’s a free-for-all with what they can do.


First, every municipality has its own rules. For the most part, this is noticeable at the state level. County restrictions usually mirror whatever the state allows in terms of expert witnesses. So, while California is extremely lenient with non-retained expert witnesses, any other state might be far stricter, and the level of opinion or outside facts used might be less than optimal for a certain case.


You must take into account your state laws regarding non-retained expert witnesses if you plan to use one in court; as the strategies outlined by out-of-state attorneys and legal counselors might not apply in the municipality that you’re going to trial in.

Then, there are the basic rules covering all expert witnesses. An expert witness is still supposed to be an unbiased expert. They’re not there to make your client look good; they have to uphold their integrity as a professional while conveying their experience to the court.


As such, a legal team looking to bring in either type of expert witness can’t sway the expert’s testimony in their favor when it doesn’t match their experiences.


We’ll use an extreme example to illustrate this. Let’s say you’re an attorney looking to prove your client deserves a $50,000 cash payment because they broke their leg in a business parking lot, and “couldn’t” work for ten years after the fact. You couldn’t bring in an expert witness and tell them a bunch of stories about how, even ten years after proper treatment, the incident has left them incapable of working or providing for themselves, and then coach the expert into agreeing with that in court. You would have to relay the facts of the case to the proposed expert witness, interview them about their experiences, and then determine whether or not their expert experience on the matter supports your case. If not, you don’t hire them.


With non-retained expert witnesses, you still can’t coax them into agreeing with utter nonsense or contradicting their experiences, but there is more freedom for the expert to speak outside of their past experiences to support your client.


Find the Right Expert Witnesses for Your Case


Finding expert witnesses that support your argument without you having to nudge them in the right direction or contradict court rules is difficult. We recommend enlisting the help of professional service to help find expert witnesses whose experiences align with your argument without the hassle of time-consuming interviews.