Consulting with a Non-Disclosed Expert Witness
The Non-Disclosed Consulting Expert: Attorney’s Secret Weapon
By Sanjay Adhia, M.D.
Why you should retain an Expert Witness as a Consultant
I would recommend attorneys retain a consulting expert in Forensic Psychiatry early in their case. A consulting expert may provide the attorney with crucial insight that might determine the legal outcome.
A non-disclosed consulting expert (“consulting-expert”) can assist in ways a Disclosed Expert Witness (“Expert Witness”) cannot. Most importantly, a consulting-expert is not restrained by the arm’s length nature of an Expert Witness.
Does My Client Have a Case?
A consulting‑expert will offer observations about psychiatric issues in a case if any, or “red flags” suggesting deeper inquiry. “Does my client have a case?” is a question attorneys face if they are relying on their client’s own report of psychiatrically relevant information. The attorney may want to consult a psychiatrist to evaluate those reports for consistency and plausible validity.
Case law raises a question if a consulting‑expert enjoys an attorney-client privilege that an Expert Witness does not*. If you, the attorney, determine that is true, then protection from discovery enables a less restrictive exchange of information between attorney and consulting-expert.
Opposing Expert’s Reports and Opinions: Critique.
The variety of tasks a non-disclosed consultant performs can prove invaluable to an attorney.
When a Disclosed Expert Psychiatrist or Psychologist has issued a report or rendered deposition testimony, the consulting Forensic Psychiatrist may be able to share opinions not limited by those Rules of Evidence that apply to an Expert Witness.
Benefits of a Consulting Forensic Psychiatrist: A Second Set of Eyes
There is no substitute for providing a second set of eyes; highly skilled eyes sharply trained on opposing counsel’s expert:
- Dissect the report for the attorney, highlighting weaknesses and strengths.
- Identify if the o/c expert opinions have exceeded the limits of their credentials and qualifications.
- Review any o/c expert testimony for clues about the case that might otherwise be overlooked.
- Review the case to learn what o/c’s expert may have missed.
Deposition and Trial Strategy: Maximize Cross-Examination.
A consultant’s most valuable contribution is often developing cross-examination questions to reveal found flaws in o/c’s expert’s opinions or credentials. For example:
- “Dr. X, you are not a psychiatrist, is that correct? [to a psychologist]
- Do you have medical training?
- Can you prescribe medication?
- In your report you rely in part on your review of pharmacy notes, is that true?
- Is it true you are not qualified to opine about medications?
Consultant-to-Disclosed Expert Witness: Role, Services, and Transition
Attorneys might consider asking the expert-consultant to perform an IME (Independent Medical Exam) and produce an expert report (not Expert Witness report) so the attorney is better informed. As a consultant, an attorney should research if such findings are protected by attorney-client privilege with powerful benefits to trial strategy.
The question remains if the expert-consultant is later disclosed as an Expert Witness, are the IME and report considered discoverable Expert Witness opinion? Might there be a way for the parties to agree to admissibility of consultant opinions?
Whether Consultant or Disclosed Expert Witness, the Forensic Psychiatrist may be able to render valuable testimony:
Opine about the plaintiff or defendant in particular.
- Educate the fact-finder on psychiatric subject matters such as Emotional Distress, diagnosed psychiatric conditions like Depression, PTSD or Anxiety Disorders—not surprising after a trauma.
- Findings and opinions based on material obtained by the Expert including an IME (see reference to agreement above.)
- State of mind of plaintiff or defendant.
Protections for a consulting-expert and limits for a disclosed Expert Witness require an attorney to ensure the line between what the Expert knows from being a consultant doesn’t infiltrate Expert opinion or testimony.
The Disclosed Expert Witness
There are times when an attorney will like to convert the consulting expert to a testifying expert witness.
Ethically, it is incumbent on an Expert Witness to be impartial and independent. The primary role is to provide an independent opinion and not necessarily to assist attorneys on winning their case. Rules of Evidence apply to the role and restrictions on an Expert Witness. As stated, attorney-client privilege may not apply, and communications might be subject to discovery. Attorneys are responsible for knowing the Federal and State law on this issue, so no barriers are crossed.
One Experience as a Consulting Expert
Once, I was retained by a defense attorney that assists capital defendants. The attorney requested I perform a psychiatric evaluation to determine the current mental state of his client. He also asked me to inquire why his client would not accept a plea bargain and if there was any psychiatric reason for this. The attorney reported my input made a significant difference to his understanding of his client and the direction of the case.
A Forensic Psychiatrist brings invaluable experience and understanding to a case that cannot be obtained any other way. The earlier you engage a consulting-expert, the greater the lead-time to develop your client’s case and offer the most effective representation. Attorneys who retain the resources of a consulting-expert will find they have a leg-up over the other side.
Here are a few interesting articles and blogs to inspire inquiry about the differences between a consulting-expert and a disclosed Expert Witness. I am not qualified to determine if they are factually accurate.
Expert Witness Disclosure: Avoiding Exclusion (Ryskamp, ExpertInstitute)
Consulting vs. Testifying Experts (Funk, ExpertInstitute)
 I am not an attorney and I defer to counsel any legal questions about what is or is not subject to attorney-client privilege or discovery. Any statements in this article on that topic are secondary and not meant to be legally conclusory.