Expert Witnesses and Consultants

Great care must be taken in the selection of an effective litigation team, consisting of both testimonial and non-testimonial experts, to achieve quality attorney advocacy in contested custody litigation. Once that team is assembled, its vigilant supervision is of paramount importance because mismanagement can lead to unintended consequences that can compromise the case.

This article discusses the elements of cautious team management, with particular emphasis on the interplay between testimonial experts, non-testimonial consultants, and the attorney.

Disclosure Rules, Dual Roles

Although it might be tempting to forgo using a trial consultant when there is already a testimonial expert ' especially when financial resources are limited ' attorneys should resist enlisting a testimonial expert to do “double duty” for two important reasons. First, the rules of disclosure for testimonial experts require careful monitoring of the flow of information to such experts if unintended revelation is to be avoided. Second, the potential for adverse impact on expert credibility that can
flow from dual roles must be considered.

Expert Witness Disclosure

When an expert is engaged for the purpose of providing testimony, certain pretrial disclosure requirements are triggered. Although there is often a degree of incoherence in the application of the various rules, two primary provisions are implicated.

Using New York as an example (check the analogous statute in the applicable jurisdiction to determine whether such concepts govern your case), New York's procedural statute, CPLR 3101(d)(1)(i), provides in part that:

Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion.

Additionally, court rule provides:

Each expert witness whom a party expects to call at the trial shall file with the court a written report, which shall be exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date. 22 NYCRR '202.16(g)(2).

In view of these provisions, counsel must anticipate that there will be substantial pretrial disclosure with respect to a testimonial expert, not only of the conclusions reached, but also of all the underlying data upon which the expert has relied. Accordingly, before conveying any case-specific information to a testimonial expert, the attorney must consider the impact of ultimate disclosure to the opposing party.

Beyond pretrial disclosure, the practitioner must also be concerned with in-court disclosure. Most fundamentally, CPLR 4515 requires the expert witness, upon cross-examination, to disclose the specific bases and other supporting criteria underlying his or her opinion. (Rule 705 in the Federal Rules of Evidence provides the federal analog of CLPR 4515: Disclosure of Facts or Data Underlying Expert Opinion ' The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise.) The expert may, in any event, be required to disclose the underlying facts or data on cross-examination. Additionally, it must be remembered that once the witness is put on the stand to testify, the adversary will be entitled to inspect any document used by the witness to refresh his or her recollection, whether that refreshment occurred on the stand or prior to taking the stand. This right of adversarial inspection extends even to documents which otherwise would be privileged, their use for the purpose of refreshing the witness' recollection having been held to waive the privilege.

Accordingly, from the perspective of the proponent of the testifying expert, extreme care must be exercised in presenting information to the witness, lest inadvertent disclosure ensue. From the perspective of the cross-examiner, of course, it is advisable, at the outset of cross-examination, to inquire as to what writings, if any, the witness has reviewed in preparation for his or her testimony and demand their production, as well as a recess to review the documents.

Attorney Work Product

In sharp contrast to the broad disclosure requirements applicable to testimonial experts, communications and data flow between counsel and non-testimonial experts, i.e., trial consultants, enjoy substantial confidentiality safeguards.

The attorney work product doctrine is rooted in the seminal U.S. Supreme Court decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed.2d 451 (1947), and, in New York, finds expression in CPLR 3101(c), which provides that the “work product of an attorney shall not be obtainable” in disclosure. CPLR 3101(d)(2) provides substantial, though less absolute, protection for material prepared for litigation:

Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.

These provisions have been the subject of judicial applications which have drawn a critical distinction between disclosure of data put before a testimonial expert, on the one hand, and non-testifying consultants on the other.

In the leading First Department decision of Santariga v. McCann, 161 AD2d 320, 555 NYS2d 309 (First Dept. 1990), the court, quoted from Weinstein-Korn-Miller and embraced the following concept of immunity from disclosure.

In reliance on Santariga, trial courts typically have denied disclosure of communications to and by non-testimonial consulting experts. Clearly, once a party has designated an expert, there is a requirement that certain discrete information be produced at the proper time during the litigation ' . However, as stated by the court in Santariga, “an expert who is retained as a consultant to assist in analyzing or preparing the case is beyond the scope of this provision [CPLR 3101(d)].”

The practical lesson here is pretty straightforward: If you do not want something made known to the other side, do not provide it to a testimonial expert!

In concrete terms, suppose a client in a custody case has communicated under the umbrella of privilege, a damaging fact to counsel, e.g., that he or she has been wrestling with an alcohol abuse problem. As far as counsel can determine, everyone in the case, including the other side, is unaware of the episode. However, counsel cannot be sure of this and wants to be in a position to handle it if it does arise at trial. Assuming for the sake of discussion that a psychologist might have something useful to say on the subject; consequently, counsel wants to confer with an expert about it. If the attorney uses one of his or her testimonial experts for this purpose, he or she may have lit the fuse on a courtroom bomb that will explode if the other side asks the right questions of this expert on cross-examination, at which time, barring perjury, the witness would have to disclose it. In contrast, by putting the question to a non-testimonial consultant, a free and open discussion of the issue can be had and an appropriate strategic decision can be made without fear of alerting the other side.

On the flip side, suppose counsel believes he or she has some damaging “fact” about the opposing party. Naturally, the attorney will wish to explore the most effective means of exploiting this at trial. Unfortunately, evidentiary problems make it less than certain that such fact can be proven at trial. That will not be known until the trial is under way. If the attorney were to put this fact before a testimonial expert who relies upon it as part of the basis for his or her testimony, the expert's opinion may be rendered inadmissible because it relies upon impermissible hearsay.

This distinction between testimonial and non-testimonial experts, in terms of what is and what is not subject to disclosure, poses an important limitation on the data one puts before a testimonial expert. It is why the better practice is to employ a non-testimonial consulting expert whose communications are shielded by the work-product and litigation material provisions. This will provide the secure environment that is needed to facilitate open discussion between the attorney and the consultant so that the various strengths, weaknesses, contingencies and potential unknowns of the case can be considered in a free-wheeling and creative manner.

One final admonition is in order. Assuming the practitioner has both a testimonial expert and a non-testimonial consultant, it is just as important to control the data flow from the consultant to the witness as it is to be cautious in the information conveyed directly by the attorney. A consultant's utterances to the witness can contaminate the witness' basis just as can those made by the attorney.

Credibility

Another important consideration militating against dual roles for experts is the potential diminishment of the expert witness' credibility that flows from assuming the adversarial role as a litigation strategist. This role distinction is important.

A testifying expert's role is to inform the court. The Specialty Guidelines for Forensic Psychologists admonish psychologists to advocate for the data and not to advocate for the litigation position. A testifying expert advocates for the data, not for the litigation position. A non-testimonial consultant has greater freedom to assist the attorney in advocating for a litigation position by virtue of the assigned tasks.

For example, a non-testimonial consultant may assist the attorney to advocate vigorously a litigation position through his or her crafting of direct or cross-examination questions, with the caveat that there is an ethical constraint not to assist in a manner that distorts either case-related facts or the state of psychological knowledge. The questions are intended to be used by an attorney whose ethical responsibility is to “zealously advocate” for the litigant's legal position, and the provision of the assistance does not mean that the consultant ultimately agrees with the litigant's position in the case. The task is to assist the attorney in fulfilling his or her ethically and legally prescribed role.

This important distinction between the non-adversarial, testimonial role, which requires, ideally at least, that psychologists “advocate for the data and not to advocate for the litigation position,” has led some respected authorities in the forensic field to opine that assuming both roles is unethical:

The Ethical Principles provides [sic] a broad framework for considering dual roles according to potentially harmful consequences. In the case of FMHA (forensic mental health assessment), the 'harm' could occur in the damage to integrity of the forensic clinician, the FMHA process, and the justice system if a consultant, who was retained to help win the case, were subsequently asked to become an impartial expert in the same case and testify about what is true.

Heilbrun, Kirk (2001). Principles of Forensic Mental Health Assessment, New York: Plenum 2001, p. 74.

Again, this potential diminishment of the potency of the testifying expert can be avoided simply by confining him or her to the testimonial role and using another professional as the consultant.

Conclusion

An attorney should avoid enlisting experts in double-duty roles. The disclosure distinctions and credibility issues militate against such dual roles. Where the client's financial resources permit, a team of both testimonial and non-testimonial experts should be used. Once such a team is assembled, of course, careful data management is essential to avoid the land mines discussed above.

Timothy M. Tippins, a member of this newsletter's Board of Editors, practices exclusively as special counsel in contested custody cases. This article, which originally ran in Incisive Media sister publication the New York Law Journal, emerged from a paper that was jointly presented by the author, together with Jonathan W. Gould, Ph.D., ABPP of Charlotte, N.C., and Jeffrey P. Wittmann, Ph.D., of Albany, NY.

Great care must be taken in the selection of an effective litigation team, consisting of both testimonial and non-testimonial experts, to achieve quality attorney advocacy in contested custody litigation. Once that team is assembled, its vigilant supervision is of paramount importance because mismanagement can lead to unintended consequences that can compromise the case.

This article discusses the elements of cautious team management, with particular emphasis on the interplay between testimonial experts, non-testimonial consultants, and the attorney.

Disclosure Rules, Dual Roles

Although it might be tempting to forgo using a trial consultant when there is already a testimonial expert ' especially when financial resources are limited ' attorneys should resist enlisting a testimonial expert to do “double duty” for two important reasons. First, the rules of disclosure for testimonial experts require careful monitoring of the flow of information to such experts if unintended revelation is to be avoided. Second, the potential for adverse impact on expert credibility that can
flow from dual roles must be considered.

Expert Witness Disclosure

When an expert is engaged for the purpose of providing testimony, certain pretrial disclosure requirements are triggered. Although there is often a degree of incoherence in the application of the various rules, two primary provisions are implicated.

Using New York as an example (check the analogous statute in the applicable jurisdiction to determine whether such concepts govern your case), New York's procedural statute, CPLR 3101(d)(1)(i), provides in part that:

Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion.

Additionally, court rule provides:

Each expert witness whom a party expects to call at the trial shall file with the court a written report, which shall be exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date. 22 NYCRR '202.16(g)(2).

In view of these provisions, counsel must anticipate that there will be substantial pretrial disclosure with respect to a testimonial expert, not only of the conclusions reached, but also of all the underlying data upon which the expert has relied. Accordingly, before conveying any case-specific information to a testimonial expert, the attorney must consider the impact of ultimate disclosure to the opposing party.

Beyond pretrial disclosure, the practitioner must also be concerned with in-court disclosure. Most fundamentally, CPLR 4515 requires the expert witness, upon cross-examination, to disclose the specific bases and other supporting criteria underlying his or her opinion. (Rule 705 in the Federal Rules of Evidence provides the federal analog of CLPR 4515: Disclosure of Facts or Data Underlying Expert Opinion ' The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise.) The expert may, in any event, be required to disclose the underlying facts or data on cross-examination. Additionally, it must be remembered that once the witness is put on the stand to testify, the adversary will be entitled to inspect any document used by the witness to refresh his or her recollection, whether that refreshment occurred on the stand or prior to taking the stand. This right of adversarial inspection extends even to documents which otherwise would be privileged, their use for the purpose of refreshing the witness' recollection having been held to waive the privilege.

Accordingly, from the perspective of the proponent of the testifying expert, extreme care must be exercised in presenting information to the witness, lest inadvertent disclosure ensue. From the perspective of the cross-examiner, of course, it is advisable, at the outset of cross-examination, to inquire as to what writings, if any, the witness has reviewed in preparation for his or her testimony and demand their production, as well as a recess to review the documents.

Attorney Work Product

In sharp contrast to the broad disclosure requirements applicable to testimonial experts, communications and data flow between counsel and non-testimonial experts, i.e., trial consultants, enjoy substantial confidentiality safeguards.

The attorney work product doctrine is rooted in the seminal U.S. Supreme Court decision in Hickman v. Taylor , 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed.2d 451 (1947), and, in New York, finds expression in CPLR 3101(c), which provides that the “work product of an attorney shall not be obtainable” in disclosure. CPLR 3101(d)(2) provides substantial, though less absolute, protection for material prepared for litigation:

Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.

These provisions have been the subject of judicial applications which have drawn a critical distinction between disclosure of data put before a testimonial expert, on the one hand, and non-testifying consultants on the other.

In the leading First Department decision of Santariga v. McCann , 161 AD2d 320, 555 NYS2d 309 (First Dept. 1990), the court, quoted from Weinstein-Korn-Miller and embraced the following concept of immunity from disclosure.

In reliance on Santariga, trial courts typically have denied disclosure of communications to and by non-testimonial consulting experts. Clearly, once a party has designated an expert, there is a requirement that certain discrete information be produced at the proper time during the litigation ' . However, as stated by the court in Santariga, “an expert who is retained as a consultant to assist in analyzing or preparing the case is beyond the scope of this provision [CPLR 3101(d)].”

The practical lesson here is pretty straightforward: If you do not want something made known to the other side, do not provide it to a testimonial expert!

In concrete terms, suppose a client in a custody case has communicated under the umbrella of privilege, a damaging fact to counsel, e.g., that he or she has been wrestling with an alcohol abuse problem. As far as counsel can determine, everyone in the case, including the other side, is unaware of the episode. However, counsel cannot be sure of this and wants to be in a position to handle it if it does arise at trial. Assuming for the sake of discussion that a psychologist might have something useful to say on the subject; consequently, counsel wants to confer with an expert about it. If the attorney uses one of his or her testimonial experts for this purpose, he or she may have lit the fuse on a courtroom bomb that will explode if the other side asks the right questions of this expert on cross-examination, at which time, barring perjury, the witness would have to disclose it. In contrast, by putting the question to a non-testimonial consultant, a free and open discussion of the issue can be had and an appropriate strategic decision can be made without fear of alerting the other side.

On the flip side, suppose counsel believes he or she has some damaging “fact” about the opposing party. Naturally, the attorney will wish to explore the most effective means of exploiting this at trial. Unfortunately, evidentiary problems make it less than certain that such fact can be proven at trial. That will not be known until the trial is under way. If the attorney were to put this fact before a testimonial expert who relies upon it as part of the basis for his or her testimony, the expert's opinion may be rendered inadmissible because it relies upon impermissible hearsay.

This distinction between testimonial and non-testimonial experts, in terms of what is and what is not subject to disclosure, poses an important limitation on the data one puts before a testimonial expert. It is why the better practice is to employ a non-testimonial consulting expert whose communications are shielded by the work-product and litigation material provisions. This will provide the secure environment that is needed to facilitate open discussion between the attorney and the consultant so that the various strengths, weaknesses, contingencies and potential unknowns of the case can be considered in a free-wheeling and creative manner.

One final admonition is in order. Assuming the practitioner has both a testimonial expert and a non-testimonial consultant, it is just as important to control the data flow from the consultant to the witness as it is to be cautious in the information conveyed directly by the attorney. A consultant's utterances to the witness can contaminate the witness' basis just as can those made by the attorney.

Credibility

Another important consideration militating against dual roles for experts is the potential diminishment of the expert witness' credibility that flows from assuming the adversarial role as a litigation strategist. This role distinction is important.

A testifying expert's role is to inform the court. The Specialty Guidelines for Forensic Psychologists admonish psychologists to advocate for the data and not to advocate for the litigation position. A testifying expert advocates for the data, not for the litigation position. A non-testimonial consultant has greater freedom to assist the attorney in advocating for a litigation position by virtue of the assigned tasks.

For example, a non-testimonial consultant may assist the attorney to advocate vigorously a litigation position through his or her crafting of direct or cross-examination questions, with the caveat that there is an ethical constraint not to assist in a manner that distorts either case-related facts or the state of psychological knowledge. The questions are intended to be used by an attorney whose ethical responsibility is to “zealously advocate” for the litigant's legal position, and the provision of the assistance does not mean that the consultant ultimately agrees with the litigant's position in the case. The task is to assist the attorney in fulfilling his or her ethically and legally prescribed role.

This important distinction between the non-adversarial, testimonial role, which requires, ideally at least, that psychologists “advocate for the data and not to advocate for the litigation position,” has led some respected authorities in the forensic field to opine that assuming both roles is unethical:

The Ethical Principles provides [sic] a broad framework for considering dual roles according to potentially harmful consequences. In the case of FMHA (forensic mental health assessment), the 'harm' could occur in the damage to integrity of the forensic clinician, the FMHA process, and the justice system if a consultant, who was retained to help win the case, were subsequently asked to become an impartial expert in the same case and testify about what is true.

Heilbrun, Kirk (2001). Principles of Forensic Mental Health Assessment, New York: Plenum 2001, p. 74.

Again, this potential diminishment of the potency of the testifying expert can be avoided simply by confining him or her to the testimonial role and using another professional as the consultant.

Conclusion

An attorney should avoid enlisting experts in double-duty roles. The disclosure distinctions and credibility issues militate against such dual roles. Where the client's financial resources permit, a team of both testimonial and non-testimonial experts should be used. Once such a team is assembled, of course, careful data management is essential to avoid the land mines discussed above.

Timothy M. Tippins, a member of this newsletter's Board of Editors, practices exclusively as special counsel in contested custody cases. This article, which originally ran in Incisive Media sister publication the New York Law Journal, emerged from a paper that was jointly presented by the author, together with Jonathan W. Gould, Ph.D., ABPP of Charlotte, N.C., and Jeffrey P. Wittmann, Ph.D., of Albany, NY.