A lawyer can choose to hire an expert witness for a variety of reasons. Experts increase the credibility in their cases, help prepare attorneys for a case and have the ability to explain complicated terminology and theories to a lay audience. When it comes to experts there are two different types: expert consultants (non-testifying) and testifying experts. In higher profile cases, lawyers have use for both types of experts while in smaller cases lawyers tend to use one expert as both.

Non-testifying Experts

Non-testifying experts are often referred to as expert consultants. Expert consultants have several benefits granted to them that testifying experts do not. For one, consulting experts do not have to be designated. An attorney can retain the consultant for their guidance, advice and to obtain their confidentiality. These types of consultants cannot be deposed by opposing counsel and can not be utilized by them, either. Non-testifying experts can be of assistance in preparing the attorney for discovery requests and questions for opposing witness. They can also assist with understanding and analyzing case evidence. Experts give lawyers an advantage with filling in the gaps with educated conclusions in order to help build a strong defense.

Testifying Experts

Testifying Experts are experts that are allowed to testify for the case. These witnesses must be designated to opposing counsel before the trial begins. The expert, as a witness can be subpoenaed for deposition and may be obligated to prepare reports.  Expert witnesses can assist a lawyer in understanding their area of expertise and use it in the courtroom. Everything they do is open for the opposing to view and their qualifications can be questioned by both sides of the case. They contribute expert evidence based on their knowledge, past experiences and field of expertise. Expert witnesses who testify help the judge, jurors and opposing counsel understand case evidence in laymen’s terms. Their expert analysis carries legal weight. The expert witness can provide any clarification concerning factual evidence requiring expertise in its explanation and presentation.

Difference between Expert Consultants and Expert Witnesses

Expert Consultant Witnesses Expert Witnesses
Expert cannot be deposed. Expert will be deposed.
Expert does not need to be designated. Expert has to be designated.
Everything said, done and written is confidential. Everything said done or written must be revealed to opposing.
They can easily transfer to testifying expert witness. It is difficult to transfer into consultant.
Expert cannot testify in court. Expert can testify in court.
Possibility of lower fees.


Expert witnesses can add depth to your case. Choosing an expert witness to be testifying or non-testifying can be crucial to your case. There are pros and cons for both and it is important to understand them when deciding which expert you need. Not sure email us and we can help you pick one or both.