By Tom Hagy


An important decision in selecting a financial expert in complex commercial litigation is whether you pick a “testifying” expert or a “consulting” expert. 


Speaking on a teleconference for Mealey Litigation Conferences, James C. Dugan of Willkie Farr & Gallagher cited Federal Rule of Civil Procedure 26(a)(2)(B), which, he explained, offers very broad discovery parameters for testifying experts and materials exchanged in preparing for trial. 


In the case of a testifying expert, “assume everything you send to your expert will end up in the hands of the jury,” he said.  While most lawyers want to see drafts of expert reports, like everything else, “those drafts will probably have to be disclosed and may create issues for you and your expert.”  The other side will pore over these materials methodically in an effort to call your witness’ credibility into question. 


In some cases you will want to work with a consulting expert, someone who will not testify and never get before a jury, Dugan explained.     In this arrangement the materials exchanged between you and your expert are protected as attorney work product, he said.  That’s not to say the other side may not challenge you, he said, but typically they won’t be successful in breaking through the work product shield.  When you are going through rounds of drafts, you will want a consulting expert, not a testifying expert, to work with you to best position your analysis. 


Dugan said this is especially true where different damages theories are at issue.  You will want to investigate those thoroughly and fully prepare with your consulting expert before you work with your testifying expert.  “You don’t want to put your testifying expert in that position,” Dugan said, since this could throw their conclusions into question.


This is from audio recordings and materials available on CD from Mealey’s Litigation Conferences and BVR.  These packages — “Effective Timing & Use of Financial Experts” and “Compelling Statistical Evidence: Mining, Modeling, & Presenting Quantitative Financial Evidence to Juries” – contain audio, presentations and transcripts. For more information, write to me directly: