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)