Mastering the Art of Expert Witness Testimony: Legal Privileges Relating to Expert Witnesses

Legal privileges relating to expert witnesses

The purpose of this video is to dispel the myth that expert witnesses are shielded from discovery by the attorney client privilege or the attorney work-product rule.

Novice expert witnesses often think that their communications with lawyers and clients are private and confidential, and won’t be disclosed to the other side in litigation.

Nothing could be further from the truth.

So, the conclusion of this presentation is:  … virtually nothing a designated expert witness discusses, reviews, researches or analyzes during the course of a case is protected from disclosure to the opposing side in litigation.  

Failure to understand this reality can be: (1) devastating to your client’s position in a case and (2) can expose you to liability to the client for not being aware of this fundamental fact.

This “lack of expert privilege” colors everything an expert does in the work-up of a case…  file documentation, note taking of conversations, descriptions of services in your billings, preparation of strategy memoranda, and more…

Let me back up and put this entire subject in context.

There are two types of experts: “consulting” experts and “designated” expert witnesses,  and there’s a significant difference between the two.

A “consulting” expert is a person who works directly for a lawyer, helping him or her to prepare a case for litigation.  Consulting experts are not necessarily disclosed to the opposing side and they are not expected to render expert witness testimony in the case.  

By contrast, a “designated” expert is formally disclosed to the opposition and is expected to testify at trial in the case.  This is a person with sufficient background, education and experience in a particular field to qualify to give opinion evidence in a trial.  

There’s a critical difference between consulting experts and designated experts:  a consulting expert operates within the attorney work-product rule and their work is shielded from discovery by the other side.  

A designated expert does not operate within any legal privilege.  She will be disclosed to the other side; her work and communications are not protected from discovery, and; she is expected to give a deposition and testify at trial. 

Let me define the two privileges that somewhat relate to expert witnesses and the general misunderstandings of them.

The two privileges are the attorney-client privilege and the attorney work-product rule.

The attorney-client privilege is the privilege that protects certain communications between a client and his lawyer and keeps those communications confidential. 

Although there are minor variations, the elements necessary to establish the attorney-client privilege are: (1) the asserted holder of the privilege is a client; (2) the person to whom the communication is made is a member of the bar (or her subordinate) and is acting as an attorney; and (3) the communication was for the purpose of securing legal advice. 

Although some lawyers and experts think the attorney-client privilege insulates expert witnesses from discovery, that position is simply not supportable. The expert witness is not the attorney’s client and the other elements of the privilege don’t apply either.

Be careful….  Sometimes lawyers and clients talk to experts thinking that the conversations are attorney-client privileged.  They aren’t.

The only privilege that has anything to do with the use of experts is the attorney work-product rule.

And, it’s only applicable to consulting experts, not designated expert witnesses. 

The attorney work-product rule is the legal doctrine providing that materials prepared by an attorney in preparation for litigation are protected from discovery by the opposing side. The rule has been extended to agents of the lawyer working at the lawyer’s direction, like paralegals and secretaries..  And consulting experts.

So, how might it apply to experts generally?

An attorney can hire a consultant to assist him or her in the preparation of a case, and the work product and knowledge of the consultant can be privileged under the attorney work-product rule. 

This is the privilege that has given rise to the term “consulting expert,” meaning a consultant who performs services for the lawyer related to the litigation who will not be designated as an expert witness in the matter. 

The consultant’s work is protected from discovery in the same way that the work of the lawyer’s paralegal is protected. 

Recall the two types of experts:  the “consulting” expert and the formally “designated” expert witness.  The designated expert is expected to testify at trial and he or she is not within the attorney’s work-product rule.  The designated expert’s work is fully discoverable by the other side of the case.

Now here’s a problem that occasionally arises:

An attorney initially hires a consultant to do some investigation in a case, without formally designating the consultant as an expert witness.

The consultant reports back to the lawyer with some investigation and research that the lawyer likes, and the lawyer designates the consultant as a “designated” expert witness in the case. 

If that occurs, the trend of authority indicates there is no privilege shielding the initial work of the consultant-turned-expert from discovery. 

Some lawyers would suggest there is a “line in the sand” that exists before the formal expert designation, but there seems to be no authority supporting that argument. 

In reality, there is no protection from the discovery of all of the designated expert’s work in the case, both before and after the formal expert designation.

There is also very little support for the position that one employee of a firm can be a consulting expert – and protected from discovery – and another employee of the same firm can be a designated expert witness.  

The reality is…. The knowledge of one member of a firm is attributed to all members of the firm, and none of the firm’s work is shielded from discovery. 

Now, there is one significant exception to the lack of privilege related to a designated expert’s work.  

In 2010, Federal rule of civil procedure 26 was amended to allow expert report drafts and communications between counsel and witnesses relating to those reports to be shielded from discovery. 

So, if that rule applies to your work, those limited communications are privileged, and shielded from disclosure to the other side.

Be aware of the rules in your jurisdiction, but I suggest that you generally practice as though nothing you do as a designated expert witness is privileged and shielded from disclosure to the other side.  

Nothing – not your communications, your notes, your research, your preliminary analyses….Nothing.  

A competent expert knows this and will act accordingly.

I will close with one other fact for the expert to consider….

Many professions have codes of conduct that include confidentiality of client communications and client information,… but it is important to understand that “confidentiality” does not equate to a legal privilege. 

Within the context of forensic consulting, a communication is either legally privileged or it isn’t. There is no such thing as “confidential.”

So, I suggest that you should assume that no legal privileges apply to your work if you are designated as an expert witness in a litigation matter. 

Everything the forensic consultant does is discoverable, except for draft reports and related communications in jurisdictions following the federal rules. 

Awareness of this fact will inform your internal practices for file documentation and communications. You should expect that every scribble of writing will be shown to the other side and may end up as exhibit 1 in the trial of the case. 

I cover the issue of privilege in much more detail in my treatise, mastering the art of expert witness testimony.

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