The expert shapes what discovery is worth taking. Retained after discovery closes, they work with whatever happens to be there.
Esshaki Legal Media TeamCurrent as of December 2023
Expert testimony decides valuation disputes, causation disputes and most damages
questions. The common error is treating expert retention as a late-stage task.
Retain early. The expert should shape the discovery plan: which financial
records to request, which years, which custodians, what to ask in depositions. An
expert retained after the close of discovery is limited to the record others
built.
Admissibility is a threshold, not a formality. Courts assess whether the
expert is qualified, whether the testimony rests on sufficient facts and reliable
methods, and whether those methods were applied reliably to the facts. Challenges
are made before trial and a successful one frequently ends the case, because a
damages claim without an admissible expert usually cannot be proved.
The report matters more than the testimony. It defines the scope of the
opinions; opinions not disclosed generally cannot be offered later.
Consulting versus testifying. A consulting expert’s work is generally
protected from discovery in a way a testifying expert’s is not. Converting one to
the other after they have seen everything is a decision to make deliberately.
Choose for clarity, not credentials. The expert who can explain a valuation
method to a non-specialist is worth more than the one with the longer CV and no
ability to teach.