Consulting expert or testifying expert

The most important question at the start of every engagement: are you a consulting expert or a testifying expert? The answer changes what's discoverable, what you write and how you work.

Consulting (non-testifying) expert

Most LNC work is consulting. You help the attorney understand the records and the medicine behind the scenes.

• In federal court, Rule 26(b)(4)(D) generally protects the facts known and opinions held by an expert retained only for trial preparation who won't testify. Most states have similar rules. Exceptions exist, so don't assume total secrecy.
• Your work product (chronologies, summaries, notes) usually supports the attorney's own work product.
• You can be candid about weaknesses in the case; that candor is the point.

Testifying expert

A testifying expert gives opinions under oath, in a report, a deposition or at trial.

• Your identity, opinions, the facts and data you considered, your qualifications, your compensation and your prior testimony are disclosed to the other side (more in the testimony module).
• Your qualifications will be challenged. Many states set requirements for who may testify about the nursing standard of care, for example recent clinical practice in the same field. The attorney will know your state's rule; make sure you meet it before you agree.
• Everything you write may be scrutinized, so write carefully from day one.

Switching roles

Attorneys sometimes retain a nurse as a consultant and later designate them to testify. That can work, but it can also expose earlier communications and notes. Ask at the start: "Is there any chance you'll want me to testify?" If yes, work as if everything you write could be read by the other side.

Agree in writing

Your engagement letter (pricing module) should state your role. If it changes, put the change in writing too. Clear roles protect you, the attorney and the case.

A practical rule

Whatever your role, write only what the record supports, cite every fact to its page, and keep opinions within nursing scope. Work that would hold up in a deposition is simply good work.