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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Thursday, May 20, 2021

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will review the advantages and challenges of using non-retained experts in complex litigation. The panel will discuss how to identify non-retained experts, when some or all of the disclosure and reporting requirements of Federal Rule of Civil Procedure 26 apply, how to prevent waiver of work product or privilege protections, and what happens if a witness is converted from a non-retained into a retained expert. The program will also consider the issues arising with consulting experts.

Faculty

Escum L. Moore
Attorney
Moore & Moore, PLLC

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Caroline B. Smith
Attorney
Butler Snow

Ms. Smith is a member of Butler Snow’s litigation department and practices within the Commercial Litigation group. Prior to joining Butler Snow, she clerked for the Honorable Leslie H. Southwick of the United States Court of Appeals for the Fifth Circuit.

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Erwin J. Shustak
Managing Partner
Shustak Reynolds & Partners, PC

Mr. Shustak is the founder and Managing Partner of the Firm. He heads the Litigation and Arbitration Department, with over 40 years of extensive experience in a wide variety of complex disputes and transactions, across the country and overseas. Mr. Shustak specializes in litigations, trials, arbitrations and appeals of complex securities, financial and business disputes, with an emphasis in the areas of securities and financial services and regulatory law. Few attorneys have the depth and range of his legal experience and judgment.

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Description

Using an in-house expert in litigation can save the client expenses and fees and the employee-expert will often be familiar with the relevant facts of the case. Nonetheless, the proposed expert may not be a good witness and communications with the non-retained expert are normally not privileged.

Non-retained experts include treating physicians, accountants, vendors, product testers, employees of customers, and others who have obtained knowledge of the facts first hand but have specialized expertise qualifying them to give an opinion. They are not subject to the same disclosure requirements as retained experts. Some courts have designated the same individual as both a fact and expert witness for trial.

Nevertheless, the non-retained expert can be transfigured into a retained expert under certain conditions, triggering full disclosure and compliance with Rule 26. Problems arise when this transformation is inadvertent and happens late in the case.

Listen as this experienced panel guides counsel through the benefits of using non-retained experts as well as the pitfalls to avoid.

Outline

  1. Benefits of non-retained experts
  2. Relevant rules governing disclosure and reports
  3. Work product and privilege protection
  4. How non-retained experts can become retained experts and consequences
  5. Best practices for using non-retained experts

Benefits

The panel will review these and other issues:

  • What is the test for defining a non-retained expert?
  • Are disclosures and reports required from non-retained experts?
  • Are the conclusions of non-retained experts, not provided to any testifying experts, discoverable if used only to educate counsel?