When and How to
Present the
Non-Retained Expert Witness
Jeremy Tor, Esq.
Spangenberg, Shibley & Liber LLP
“There’s an expert for that!”
Estate of Keith Jester v. Utilimap
Pros and Cons:Retained vs. Non-retained
Expert
Advantages of Retained Expert
ConvenienceDevelop your
case
Litigation savvy
Live testimony
Disadvantages of Retained Expert
Bias
Expense
“Canceling out” effect
Advantages of Non-retained Expert
Credibility
Nullify opponent’s
expert
Disadvantages of Non-retained Expert
InconvenienceRisky
Lack of litigation
experience Video testimony
Recommendations
Contact earlyMake every
effort
Consult Local Rules
Meet in person
Build rapport
Keep them updated
Alternative to expert testimony
• Evid.R. 803(6): Business record exception
• “Diagnoses and opinions in business records”
Allowed
• Gallagher v. Firelands Reg'l Med. Ctr. (6th Dist. 2017)
• Smith v. Dillard’s Dept. Store (8th Dist. 2000)
Not allowed
• Bush v. Burchett (4th Dist. 1995)
• Guarino–Wong v. Hosler (1st Dist.1999)