The privileges and responsibilities of expert witnesses, even non-testifying expert witnesses, can be complex. There are simply too many ways they differ from traditional factual witnesses, and that’s unfortunate.
Because of how integral expert witnesses are to the litigation process, not understanding exactly what they are allowed to do, and what they are not allowed to do, can create problems with your case.
Today, we’re going to go over the privileges and responsibilities of non-testifying expert witnesses when it comes to attorney-client privilege.
We’ll provide you with a brief rundown of each of the terms involved, and then we’ll cover how expert witnesses interact with attorney-client privilege.
Let’s get started.
What is an Expert Witness?
An expert witness, as you can assume from the name, is a type of witness in a case who is extraordinarily qualified in a specific field related to the case. Unlike a factual witness, which is the type of witness who takes the stand to give a testimony on what they saw or heard during events related to a case, an expert witness has no connection to the case most of the time.
Instead, they’re experienced professionals that a legal team hires to provide insight into complicated facets of the case.
For example, let’s say that you’re bringing a lawsuit against a major company after their negligence caused you to fall on their property, and a poorly-fitted store shelf collapsed on you. You were injured enough to require crutches, the ordeal was extremely painful, and you had to miss work for three months because of it. Obviously, their lawyers are trying to frame your claims as exaggerations. Let’s say they do this by claiming the average person with your injuries recovers within one week without medical interference.
In that case, your legal team would likely hire an expert witness who is a doctor with years of experience dealing with the types of injuries you suffered from. The expert witness wouldn’t have the first-hand knowledge of the incident to say what happened, and they wouldn’t be able to make biased opinions or fudge the truth for you, but they could give their opinion on your injuries based on their experiences treating similar injuries throughout their career.
In short, expert witnesses are professionals who are brought in to support your case via their experience rather than having actually seen anything. However, they have to accept certain limitations due to that.
What is a Non-Testifying Expert Witness?
A non-testifying expert witness is a little different than just a standard expert witness. A normal expert witness will join the team long before the trial begins, participate in depositions, have their depositions recorded, and most of the time, they’ll also take the stand during the trial to reiterate their opinion on the case. The opposing legal team will then compare their statements from the deposition phase and their testimony during the trial, and they’ll formulate counterarguments with their own expert witness.
A non-testifying expert witness doesn’t do all of that. They function more as a consultant for the legal team. This doesn’t mean they’re not just as useful, though.
A non-testifying expert witness can provide key information to legal teams that can then be used during the trial to produce solid arguments and win cases, but their primary use is to help find a normal expert witness. Because they are experienced in their fields, they can help the legal team vet potential expert witnesses and determine whether a potential witness’s arguments will aid or harm the legal team’s case. They can also give opinions on whether or not the potential witness is credible enough to make a difference in the case, if their experience is truly relevant, or if it’s worth looking for another interviewee.
Finally, in the event that the non-testifying expert witness helps you find an expert witness who, for some reason, is unable to participate in the trial, the non-testifying expert witness can take their place and become a backup expert witness. This is probably the biggest reason to have a non-testifying expert witness. Not only can they help you find the right testifying witness, but if something happens to that testifying witness, you’re not left in the middle of a trial without professional support.
What is Attorney-Client Privilege?
Attorney-client privilege is one of the oldest and most crucial parts of the judicial system. It protects the communication of a client and their attorney, and it prevents the attorney from being forced to release the contents of their communications with their clients. In short, this means that clients, or people seeking to be the clients of attorneys, can speak openly about the events that occurred without worrying about that communication being used against them in court. This is key to ensuring a client can give their attorney a full account of the events that took place, without hiding anything out of fear, and the attorney can properly defend them.
As an example, let’s say you have committed a serious crime such as getting into a bar fight and seriously injuring someone. You started the fight, and the other person was barely able to defend themselves. You wouldn’t want to come out and present your case that way in court, as you would want to get the least intense punishment possible. However, your lawyer wouldn’t be able to come up with effective defense for your actions unless you could present all of the information you have about that event; including how you were 100% at fault.
With attorney-client privilege, you can admit all of that to an attorney you’re trying to hire, or one you’ve already hired, and the court can’t force the attorney to disclose that information. Obviously, the attorney and you will build an argument that frames the event in a less incriminating light to get you a more lenient sentence, and a lot of that information will come out in that argument, but it leaves room for you to present the facts in a favorable light while still being candid with your lawyer.
There are exceptions to this privilege, though.
You don’t get attorney-client privilege if you’re not at least seeking to hire the attorney you divulged such information to. The attorney must be actively being pursued as a member of your legal team.
The attorney must also be gaining that information as part of their attorney duties. If they’re simply providing business advice, and you admit to tax fraud, you aren’t protected by the attorney-client privilege.
Another major exception is that the information can’t be used to commit a crime. So, for an extreme example, you can’t plan a bank robbery with your attorney, and then when you’re charged for it, claim attorney-client privilege to cover up your premeditated crime.
Information you provided to others is a more complicated situation. Let’s say you disclose information to your sister that incriminates you. Then, you hire an attorney, and you disclose the information to your attorney. The conversation with your attorney is protected, but the court can still subpoena your sister to divulge that same information because she’s not your attorney.
Finally, these two are more obvious. If you waive your attorney-client privilege to secure a plea deal or for some other reason, you lose the privilege. You also don’t have the attorney-client privilege if the “attorney” isn’t actually a legal, qualified, attorney or a direct subordinate of one.
Does Attorney-Client Privilege Apply to Non-Testifying Expert Witnesses?
This is a complicated answer, and truthfully, it’s usually circumstantial. The most simplistic answer, that covers most situations, is no. Non-testifying expert witnesses typically aren’t protected by attorney-client privilege in most jurisdictions.
To understand this, you need to take another look at the exceptions to attorney-client privilege. Remember that the privilege is only meant to protect a client’s communications with their attorney, and also, third parties given the same information are not protected under the privilege.
Technically speaking, an expert witness is not the attorney, and they are third-party. So, in most jurisdictions, the attorney-client privilege does not apply, and the non-testifying expert witness might be questioned if the client divulges incriminating information to them. On top of that, there is another exception to attorney-client privilege; if the information is divulged in front of a third party, it’s typically not protected. So, it’s important to keep certain aspects of the case between the attorney and the client only.
This doesn’t mean that the court is going to require testimonies from non-testifying expert witnesses, and it doesn’t mean that all jurisdictions follow this line of thinking. In some jurisdictions, non-testifying witnesses are afforded some protections with the information they gain.
Also, just like with most things in the US court system, there are exceptions to this general rule of thumb, as well.
Namely, if it’s impossible for a non-expert witness to do their job and provide proper council without the client being able to act candidly, the court will typically offer an exception to the rule; allowing the non-testifying expert witness to hear candid presentations of information in order to form an opinion and provide advice.
An example of this would be if the plaintiff in a wrongful injury lawsuit were to have had two drinks before suffering a compound fracture due to an aggressive bartender. Let’s say they bled much more profusely and suffered more serious damage because of the alcohol in their system, but the event still occurred solely because the bartender attacked them. Willingly telling the court that you had a few drinks might leave room for the defense to argue that it’s your fault you sustained more substantial injuries, but you still need to let the medical-focused expert witness know so they can assess exactly what happened. That might be something that would qualify for protection under the judgment of the court official.
Of course, situations like that are handled on a case-by-case basis.
A more reliable way to protect client communication with non-testifying experts is to consider a few points and use them to your advantage.
First, any information divulged by the client in front of the expert witness should be solely for the purpose of attaining legal information. That can help protect the communication since seeking legal advice is protected under attorney-client privileges.
Secondly, maintaining confidentiality is key. Neither the client nor the witness should be taking information divulged in communication sessions to outside sources, no matter who they are or for what reason, at all. Maintaining confidentiality, protects the communication in its own right; instead of relying on court-based protections.
Then, ensure that the expert witness is in fact non-testifying as soon as possible. Preferably, this should be determined right before they come on board for the case. Non-testifying witnesses are easier to protect communications for since they aren’t actively in the trial, and they are more of a background entity for the legal team. If the witness is going to testify, it’s much harder to protect communications with them, and you need to know what you’re dealing with before information starts being traded.
Finally, if you’re the attorney, you need to make sure the expert witness is focused properly. Every bit of information they seek should be solely related to forming opinions relevant to the exact part of the case they’re involved in, and if they get off track asking questions outside of what they need for your purposes, it’s important to realign them with your goals to prevent any information exchange that might potentially fall outside of attorney-client privileges.
Getting Help Finding the Perfect Non-Testifying Expert Witness
As you can see, non-testifying expert witnesses are crucial, but they also have a lot of nuances that have to be taken into consideration, or they can derail your case.
If you need help finding a qualified non-testifying expert witness, contact Litigation Legal Insight. We specialize in helping legal teams find the expert witnesses they need to support their cases and win, and we understand the stringent requirements such witnesses must meet to properly support a team.