In a world where every industry seems to be in flux, legal disputes are becoming more and more complex. And while your legal team may be well-versed in all aspects of your specific sector, there are cases where employing a subject matter expert to aid in the creation of your litigation strategy can be crucial in obtaining a successful verdict.
While bringing in testifying experts to speak in deposition or at trial can be beneficial, it is also important to consider how a consulting expert may be able to positively contribute to your proceedings. Testifying experts provide opinions, specialized knowledge, and reports, all of which are discoverable. But consulting experts can help your team behind the scenes, and the earlier you engage with them, the stronger your stance will be.
Why should you work with a consulting expert?
In short, consulting experts are available to act in your best interest and to help you and your client form a tactical approach to the given dispute. Unlike testifying experts, consultants will not appear in court; the facts known and opinions held by these experts are not discoverable, and they do not need to be concerned about Daubert challenges or disqualifications. They are also usually available at a lower bill rate than testifiers.
Consulting experts work to analyze the opposing expert's stance along with the strengths and weaknesses of the case to advise you on how to best disprove their presented arguments.
Some of their functions involve:
- The education of attorneys and clients on the special issues of the case, allowing them to speak to or understand the true issues in the dispute. They can even guide attorneys in deciding whether or not to take on a case as consultants can help predict what complications may arise during litigation.
- Helping their clients determine if a theory or opinion is sound prior to discovery through running tests or experiments in the field. This is a great resource in the early stages of litigation and can help form the basis for an argument that is used in a deposition.
- Helping their clients decide which items to include in discovery and how to make them as effective as possible as well as advising counsel on what to pursue from the adverse party during discovery
- Providing additional experts in the field from their network to help further inform their client's litigation strategy.
In addition to helping find other experts, consulting experts can also become testifying experts - but that comes with its own set of complexities. Consulting experts must be vigilant about maintaining privilege and guarding communications if there is the potential for them to act as a testifying expert for the case in the future.
Consulting experts and their impact
What is it like being a consulting expert, and how can they impact litigation? Muriel Médard, Ph.D., a WIT IP Advisory Panel member and current NEC Professor of Software Science and Engineering at MIT, explains that "acting as a consulting expert allows an overall view, clear synthesis, and more effective approach than reactively managing litigation in a piecemeal, myopic fashion. For example, if multiple patents are being considered, different expert witnesses may be working on those individual patents, but common technical issues among those patents might be missed."
She went on to say that "consulting experts can provide perspective and context to make sense of the ensemble of information that arises from expert witnesses from each side. In other cases, a consulting expert can provide non-discoverable advice regarding the strengths and risks in a case, say an IPR matter or an infringement one, to aid the legal team in its inquiries and be prepared for possible difficult issues that may arise." Sometimes, a consulting expert might simply be able to guide the selection of experts in terms of needed background and specialization in complex technical multi-patent matters. Overall, a consulting expert's ability to interpret and distill multifaceted technical information directly benefits the legal team's work.
If you need a consulting expert to help inform your strategy and stay ahead of the curve with upcoming litigation, WIT has teams of world-class professionals comprised of:
- Academics who act as a trusted authority in a certain subject matter or field. These experts can offer a deeper understanding of academic prose and an educated look at niche areas of each industry.
- C-Suite executives who know the ins and outs of corporate operations and have experience working at the highest levels of management at firms and in government. These experts give your litigation team an understanding of best business practices and what the inner workings of the corporate business structure may look like.
- Engineers who have the know-how to handle a wide range of tasks and can conduct research, due diligence, and analysis. These experts are highly technical, have excellent attention to detail, and can provide an in-depth look at the processes that create data and products across industries.
- Regulators with the experience and insider knowledge to help counsel understand and communicate complex issues involving policies and regulations within industries. These experts are constantly examining each industry for potential issues and know the ins and outs of existing policies.
Originally published October 13, 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.