CHAPTER 7 - 7-3 Types of Experts

• Jurisdiction: United States

7-3 Types of Experts

For litigation purposes, an "expert" is a person, who through education, training, or experience has developed skill or knowledge in a subject sufficient to allow the person to render an opinion that will assist the factfinder.¹ The Texas discovery rules recognize two general types of experts: "testifying experts" and "consulting experts."²

"A testifying expert is an expert who may be called to testify as an expert witness at trial."³ There are two types of testifying experts: (1) testifying experts who are retained by, employed by, or otherwise in the control of the party (retained-testifying experts); and (2) testifying experts who are not retained by, employed by, or otherwise in the control of the party (non-retained-testifying experts).⁴ The experts in the latter category are typically treating or emergency-room physicians and nurses, police officers, firemen, and other first responders.

"A consulting expert is an expert who has been consulted, retained, or specifically employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert."⁵ There are two types of consulting experts: (1) consulting experts whose mental impressions and opinions have not been reviewed by a testifying expert (a consulting-only expert); and (2) those whose mental impressions and opinions have been reviewed by a testifying expert.⁶

Often the identity of a person who otherwise would qualify as an expert because of the person's knowledge, skill, experience, training, or education must be disclosed as person having knowledge of relevant facts and cannot be shielded from discovery as a consulting-only expert. This is because to be a consulting-only expert, the person must have been consulted, retained, or specially employed solely in anticipation of litigation or in preparation for trial.⁷ For example, an expert who was consulted before litigation was anticipated is not a consulting-only expert and the expert's identity, impressions, and opinions are discoverable if they are relevant to the action.⁸

Additionally, a person who otherwise qualifies as an expert, but who acquired relevant information as "an active participant in the events material to the lawsuit" is not a consulting-only expert.⁹ For example, a person who gains factual information due to the person's involvement in the incident or transaction underlying the action cannot qualify as consulting-only expert—even if the person acquired some information through consulting—because the consultation is not the sole basis of the person's information. Accordingly, a party's employee whose duties involve the action's...