Effectively Using Non-Retained Experts In Commercial Litigation


Litigants often overlook the value of non-retained expert witnesses in commercial litigation. Yet these witnesses can educate a judge or jury on countless complex topics without the costs associated with a retained expert that may be perceived to be a “hired gun” being paid to provide a specific expert opinion.

Both California and the Federal Rules of Civil Procedure distinguish between retained and non-retained expert witnesses. A retained expert is a witness that is hired by a party for the specific purpose of providing expert opinions. A non-retained expert, in contrast, is anyone else who is capable of providing expert testimony but was not hired for purposes of the litigation. A treating physician is not hired to provide expert witness testimony; instead, their testimony is based on their own treatment of the plaintiff. The physician, therefore, is designated as a non-retained expert so he or she can testify about the plaintiff’s treatment and diagnosis.

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