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Defense Counsel Journal

Modern Litigation Consulting Firms

Volume 92, No. 2

June 25, 2025

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Cimo_Robert Robert Cimo
Cimo_Robert

Robert Cimo

Robert Cimo is a Managing Director & Associate General Counsel. He serves as a trusted advisor to leading law firms, corporations, and government agencies worldwide on providing expert services in complex, high-stakes matters. Mr. Cimo has extensive experience leading a broad range of companies and private equity funds in critical transactions, litigation, strategic initiatives, and risk management.
Kolls_Raymond Raymond Kolls
Kolls_Raymond

Raymond Kolls

Raymond Kolls is a Managing Director and Global Co-leader of BRG’s Economics, Disputes, and Investigations Practice. Mr. Kolls’s clients include many of the world’s top law firms, with whom he works closely to assemble expert teams in high-profile complex litigation and consulting matters. A former trial lawyer and medical device general counsel, Mr. Kolls’s work often includes the most complex matters currently being litigated, many at the intersection of litigation, healthcare, antitrust, and intellectual property.
Mullady_Ray Raymond G. Mullady, Jr.
Mullady_Ray

Raymond G. Mullady, Jr.

Raymond Mullady is a seasoned trial lawyer and business strategist who has more than forty years of experience as a partner at notable AmLaw 100 law firms. He focused his legal career in the defense and prosecution of complex business, product liability, and class action litigation. Throughout his legal career, Mr. Mullady tried cases to verdict in multiple state and federal courts around the country. He represented clients as lead appellate counsel in circuit courts of appeal and state appellate courts.

Raymond G. Mullady, Jr., Robert Cimo, and Raymond Kolls, former practicing attorneys, are Managing Directors with BRG, a global business consulting firm providing expert witness services to the world’s leading law firms, largest companies, and government agencies across the globe.

GLOBAL consulting firms, especially those that focus on providing litigation consulting and expert witness testimony, have undergone significant changes in recent decades to reflect the increasing importance of expert talent in today’s economy.11David J. Teece, Expert talent and the design of (professional services) firms, 12 Indus. and Corp. Change, 895, 895-916 (2003).  They have evolved from small groups of highly educated and/or experienced individuals to thousands of experts housed in global firms, working with the guided professional autonomy they seek (and their work demands), while remaining accountable to the organization.22Greg Linden and David J. Teece, “Managing Expert Talent,” in Paul Sparrow, Hugh Scullion, and Ibraiz Tarique, eds., Strategic Talent Management, 88 (Cambridge, 2014): 87-116.

Globalization, changes in litigation trends, improved technology, the emergence of litigation finance, and more sophisticated client expectations have accelerated the transformation of litigation consulting firms. Attorneys practicing today will be well positioned to achieve optimal results for their clients if they understand the elements of this evolution, the capabilities of the modern litigation consulting firm, how to identify the firms better at managing talent, and how best to employ the diversified services expert firms offer.

I.   The Evolution

In the late 1990s and early 2000s, small, boutique firms or individual practitioners with specialized expertise were the predominant providers of litigation consulting. In contrast, large enterprise-level firms today offer broad rosters of experts across multiple disciplines from the private sector and academia, and these firms operate internationally.

The scope of services offered by expert firms has broadened to include pre-litigation consulting, expert teams for complex commercial litigation, non-testifying advisory work, valuation services, data analytics, damages modeling, forensics, and regulatory support. In short, the modern litigation consulting firm often serves as a full-spectrum provider, supporting myriad legal and business matters for their clients. 

Advances in the preparation of expert reports and modeling (which used to be a manual exercise) have contributed to the transformation. Large, full-service firms rely heavily on data analytics, visualization tools, artificial intelligence, and complex financial modeling. Experts and the firms behind them are expected to employ these tools to ensure efficiency and precision.

There has also been a dramatic rise in subject-matter specialization. In the past, many experts marketed themselves as generalists within an academic discipline (e.g., engineering, forensic accounting, economics) and operated from a boutique organization. The modern litigation consulting firm, in contrast, has greater numbers of professionals with specialized, first-hand academic, industry, and/or governmental experience. The increasingly global nature of business today has made imperative the globalization of litigation consulting firms over the past few decades. Leading firms no longer have the luxury of operating domestically or regionally, but have had to establish an international base of operations from which to consult on cross-border transactions, international arbitration, the patchwork of domestic, foreign (and often conflicting) antitrust laws, and the myriad regulations affecting global business.

The clients of law and litigation consulting firms today are more sophisticated as a result. In decades past, clients expected their counsel and experts to have the required expertise and apply it to the issues before the court or in the transaction. That is often still the mission, but clients have added additional criteria, including budgeting requirements, litigation-spend constraints, and more demanding reporting obligations to their selection criteria for lawyers and consultants. Consequently, law firms and expert consultants today must work harder and smarter to gain and keep client trust.

The past few decades have also seen an increased scrutiny over the admissibility of expert opinion in litigation matters. Before the United States Supreme Court’s 1993 seminal decision in Daubert v. Merrell Dow Pharmaceuticals33509 U.S. 579 (1993).  and later amendments to Federal Rule of Evidence 702, expert witnesses faced relaxed admissibility standards in federal court. Questionable expert opinion often was able to reach the jury, as judges routinely ruled that the imperfections of expert testimony could be tested adequately through cross-examination. Today, the Daubert standard and the amendments to Rule 702 (and similar standards worldwide) have raised the admissibility bar. This has forced litigation consulting firms to vet experts more rigorously, provide better training, and help testifying experts manage risks related to admissibility, bias, and methodology.

M&A consolidation and market conditions also have changed the landscape for litigation consulting firms. In the fragmented market of the past, these firms were able to offer niche capabilities and scale. In parallel with the consolidation of law firms and businesses, modern litigation consulting firms have acquired boutique firms or merged with other large firms to offer broader capabilities and geographic reach.

Attorneys and their clients today also have had to adjust to the emergence of litigation finance firms. Whereas litigation finance barely existed twenty years ago, litigation consulting firms now sometimes work with litigation funders, and some finance providers even bring experts in-house. Meanwhile, tech-driven “insight network” firms have emerged to provide both expert witness sourcing and survey research services, further challenging traditional consulting sourcing models.

Finally, brand building and marketing within litigation consulting firms have become technology-driven and more sophisticated. Whereas expert marketing was often word-of-mouth or reactive, modern firms devote considerable time and resources to thought leadership, webinars, podcasts, social media strategy, and client-focused events. There has been a clear shift toward proactive relationship-building with law firm partners and in-house counsel, and a more systematic, data-driven approach to aligning expert firms’ strengths with client needs.

II.   Structure of the Modern Litigation Consulting Firm

In recent decades, expert talent has become more important than ever for the creation and management of technology in the global  economy.44Linden and Teece, supra note 2, at 87, citing Steven Albert and Keith Bradley, Managing Knowledge: Experts, Agencies and Organizations (Cambridge, 1997); and Robert B. Reich, The Future of Success: Working and Living in the New Economy (Vantage, 2002).   The way firms manage this talent varies from firm to firm, such that there is no “one-size-fits-all” or “typical” large litigation consulting firm.

Our firm, for example, is the outgrowth of building blocks our founder, David J. Teece, termed the “dynamic capabilities frame-work.”55Id. at 87.   In this model, competitive advantage “by no means depends upon experts alone” since “[t]heir management must be part of the broader orchestration of the firm’s resources as it exercises its dynamic capabilities in the service of a good strategy.”66Id. at 88.  He argues “the quality of the management of a firm’s experts (i.e., the quality of its management of talent) can make the difference between inertia and action for business enterprises facing particularly challenging competitive environments.”77Id. at 89.  Thus, “[c]ompared to the management methods used for most employees, experts must be allowed more automomy, expert teams must be allowed more latitude, and expert incentives must allow for more differentiation among individuals.”88Id.

A firm’s stock of experts typically will be a combination of those who “came to the organization fully formed, so to speak, and those who have come up from within the organization.”99Id.  Their background “may be theoretical/academic or practical/empirical.”1010Id.  Managing and retaining this disparate collection of talent is a process that not every litigation consulting firm performs well.  Attorneys would be wise to assess a candidate firm’s rate of attrition with a preferential eye toward the firms that are acquiring talent at a much greater rate than they are losing it.

All of this having been said, some generalizations about the modern litigation consulting firm may be made. The modern firm typically has a global footprint with offices and resident experts in North America, Europe and Asia. It offers a diversity of service offerings that reach well beyond providing consultants and testifying experts for litigation. It offers expertise not only in disputes and investigations of every conceivable stripe, but in corporate finance, economic consulting, transaction advisory, performance advisory, and turnaround and restructuring. Large, global law firms provide their multi-national clients with many of these same services. Thus, the client benefits from today’s strategic alignment between global law firms and their trusted international litigation consulting firms.

Geographic expansion of legal and consulting services has brought diversity of culture, gender, race, language, and local custom to the center of transactions and controversies. Modern litigation consulting firms recognize this and have put greater emphasis on the diversity of their workforce, as have their global law firm counterparts. This has proven important in delivering optimal advice and outcomes.

Some large litigation consulting firms, including ours, offer a variety of rate structures and price points through the leveraging of junior staff supporting the lead, front-facing expert in litigation or transactional matters. With hourly billing rates well below that of the lead expert, staff proficient in data analytics, modeling, survey research, fraud examination, asset-tracing and the like provide robust evidentiary support for the bases of expert opinion delivered in court or during the negotiation of a transaction.

One thing that has not changed as litigation consulting firms have evolved is the importance of the credentials and testifying experience of the expert. Most firms today have good experts. The differentiator is the premium clients place on the expert’s testifying ability. As any litigator knows, there will be an opposing expert used by the adversary, reducing many trials to a “battle of the experts.” Winning or losing at trial can often come down to which side’s expert is most adept at articulating often-complex topics to a jury or judge in the simplest and most compelling manner. In this respect, seasoned trial lawyers understand that a successful outcome depends not only on matching or exceeding the credentials of the opposing expert but having their client’s expert out-perform his or her counterpart on the witness stand.

Highly-rated litigation consulting firms today not only have the “best of the best” subject matter experts in their ranks, but are able to offer the services of preeminent academic experts. When selecting a litigation consulting firm for an important litigation matter, counsel should consider firms that can call upon the specialized talent that often resides—at the highest levels—in academia. The selected firm should also have a reputation for responsiveness and accountability – important attributes in-house counsel demand as they manage litigation spend and report to upper management during the pendency of the case.

III.   Roles Played by the Modern Expert Witness/Consultant in High Stakes Litigation -- A Hypothetical Example

The role of the expert witness in modern litigation can be that of a privileged consultant, a testifying expert, or both. The two roles can be separate yet, optimally, operate in a complementary way. Whether consulting behind the scenes or acting as the testifying expert, the expert’s job is to assist defense counsel with a rigorous assessment of liability and damages. This can involve an analysis of a host of issues beyond even those alleged in the complaint. Put differently, the expert’s job is to educate counsel and arm her with the requisite expertise to best advocate for the ultimate client. The expert is the teacher, but never the advocate.

We present a hypothetical illustration for discussion purposes – a consumer product liability class action alleging adverse health effects from the use of a cosmetics product sold in retail stores, online, and promoted through advertising in traditional and social media.

In this example, the class action complaint commonly alleges a defect in the cosmetics product’s design or manufacture; negligence in design or manufacture; inadequate labeling; breach of warranty; and violation of state consumer protection statutes. Within these broad claims, however, reside a patchwork of issues that defense expert consultants can identify and assist counsel in addressing, including allegedly misleading advertising and marketing, breaches of data privacy and security, pricing errors, and alleged software malfunctions or update failures.

In this hypothetical case, the modern litigation consulting firm will execute a multi-faceted, integrated expert strategy to defend the various claims.

Multiple experts with backgrounds in economics and marketing will address the causal link between the allegations and determine the extent of impact or damage. They also will assess whether purported class members are similarly situated and thereby merit class treatment.

In a complementary way, technical and industry experts such as epidemiologists, FDA regulatory experts, and medical professionals will rebut the issues of product defect and provide context around plaintiffs’ allegations related to advertising/marketing claims and the impact on purported class members.

Economists support the technical expert’s defense of the alleged causal link between harm and injury. In the hypothetical case example, economics experts will determine the extent of heterogeneity among class members to assess whether common evidence can be used to determine impact or damages. They will analyze the composition and characteristics of putative class members. They will determine whether the purported class includes unharmed individuals. They will analyze economic and market data (on transactional prices) to assess heterogeneity and harm among class members to demonstrate that there is not a single price premium, but instead that discounts, variation by sales channel, and variation by geography create multiple prices. Economics experts might also use “natural experiments”, like articles discussing the alleged misrepresentation, to assess empirically whether patterns in prices and sales are consistent with plaintiffs’ false and misleading marketing allegations.

Liability is only half the picture, of course. Plaintiffs’ damages claims will demand a robust evaluation by the defense expert team. Damages valuation techniques used by experts in modern firms can be quite powerful in either increasing or limiting the monetary damages the jury may award at trial. These include data analytics, exposure modeling, econometric analyses, data science methodologies, surveys, and conjoint analysis. 

For example, if one of the plaintiffs’ experts in the cosmetics case hypothetical put forward a damages methodology based on conjoint analysis (to determine the reduced market value of the product due to the alleged misrepresentations in advertising and marketing), the economist would drill down on the inner workings of the model and describe the problems with the assumptions, calculations, and output of the model, like price vs. willingness-to-pay, lack of supply-side considerations, unreasonable model predictions, and irrational consumer preferences.

Let us posit further that the cosmetic class action complaint additionally alleges that the product seller had a data breach event that allowed unauthorized access to customers’ private information, misuse of personally identifying  data and/or disclosure of protected health information. Economics experts will be able to assess the economic value of the data and opine on causality between the data breach and the purported harm on a class-wide basis.

The hypothetical cosmetics case also may call for marketing/consumer behavior experts. These experts would assess heterogeneity in putative class members’ exposure to and understanding of the alleged misrepresentations to undermine the plaintiffs’ allegation that all class members were exposed to comparable information and are in similar circumstances. These experts also might conduct machine learning-based content analysis of product packaging, company marketing materials, company communications, and social media content to determine what product representations were communicated to customers, what portion of those included alleged representations, whether different consumers were exposed to different messages, and whether the messaging has changed over time and by product.

Marketing/consumer behavior experts additionally would conduct ML-based content analysis of online consumer-generated content, including consumer complaints and social media content, to assess the understanding (and variation in understanding) of alleged representations among purported class members over time. These experts would conduct a survey of purported class members to assess the factors important to product purchases (convenience, appearance, price), and the research users undertake before purchase, such as consulting online product reviews.

Marketing / consumer behavior experts, drawing on academic research, would also explain the complex nature of the product purchase-decision process, identify key factors influencing purchasing decisions, and highlight variations in product usage among individuals.

These experts might also analyze the extent to which the allegedly false, misleading representation is material to purported class members’ purchase decisions using surveys. The lack of statistically significant differences in the likelihood of purchase between the two groups tested in the survey—those who are exposed to alleged misrepresentation in the product label versus those who are not— would contradict plaintiffs’ claims that contested product-specific marketing elements were material to consumer purchase of the product. Similar surveys would be conducted to assess plaintiffs’ allegations related to omissions and lack of warning. Finally, marketing/consumer behavior experts would also evaluate the survey evidence offered by plaintiffs’ experts and critique the survey instrument and design.

IV.   Importance of Specialized Expertise – Case Type Examples

We offer below three examples of litigation in which the use of expert consultants and witnesses has become more sophisticated and today is usually required. It is important to engage experts in each of these areas early in the process to assist with fact development and discovery, as well as liability assessment, damages valuation, and trial.

A.   Class Actions

We built into the hypothetical cosmetics case that plaintiffs’ complaint sought to certify one or more classes of plaintiffs to pursue a collective action against the cosmetics manufacturer. The importance of experts to defend class certification in the first instance, before merits discovery and adjudication, bears further discussion.

Experts proficient in the economics of class certification are critical additions to the expert team. The right expert can assist the strategy for class discovery; prepare or review the data underlying the class allegations; and assist with the opposition to the motion to dismiss or certify the class. In this regard, counsel should consider the following in choosing the appropriate expert:

  • Choose an expert with specific expertise in addressing class certification issues. This includes experience analyzing predominance (common impact of the alleged misconduct); assessing the possibility of conflicts among proposed class members; and determining ascertainability of the proposed class. Defense practitioners should look out for economists used by the plaintiff who are well versed in other areas of litigation, but who may, nonetheless, inadvertently undermine their client’s class certification claims if they lack specific experience in class certification.
     
  • Class certification experience is more important than industry experience. The class certification expert can either learn the specifics of the industry or be paired with a bona fide industry expert. Based on prior experience, the class certification expert may even be able to suggest expert industry candidates.
     
  • Choose an expert comfortable digging into large datasets, often containing millions of rows of data. Frequently, the plaintiffs’ expert will make arguments based on economic theory. An expert comfortable digging into the data will help uncover specific facts to rebut that theory. Plaintiffs’ experts, for instance, frequently will conclude that common impact must exist because economic theory predicts a universal effect from the alleged misconduct. In contrast, defendants’ experts frequently will break down and show flaws in plaintiffs’ econometric models but be unable to provide real-world examples for why the models fail. In other words, defendants’ experts face criticism for observing economic aberrations without real-world corollaries. This criticism can be avoided with the testimony of an expert steeped in the economics of class certification.

B.   Antitrust

In all types of antitrust litigation, it is important to engage experts for early case framing and the development of the defense theory.

Economic experts, ideally Ph.D. economists with antitrust experience, can help counsel offer or debunk the other side’s theory of harm (e.g., price fixing, monopolization, market power) and posit a coherent alternative theory. They can identify relevant markets and define them correctly. They can assess the viability of class certification, particularly where they are engaged early enough to influence discovery strategy and assist with the depositions of opposing experts.

Economics experts, ideally with industrial organization expertise, are also needed to establish market definition. They can define the relevant product and geographic markets using accepted methodologies—for example, the Small Significant Non-transitory Increase in Price (SSNIP) test— and rebut opposing definitions as overly broad or artificially narrow. Winning the market definition battle can often decide the case outright or strengthen a motion to dismiss or for summary judgment.

Economics and industry experts also are essential in opining on competitive effects and liability analysis. They can demonstrate or rebut anticompetitive effects like price increases, output reductions, or foreclosure, and show pro-competitive justifications, such as efficiencies, innovation, and consumer benefits. Courts increasingly require a rigorous economic analysis, so expert reports need to demonstrate clearly both causality and measurable harm or the lack thereof.

In the hypothetical cosmetics case, we touched on the use of economic experts with econometric skills to help defeat class certification. These experts can assess whether injury and damages can be shown with common evidence and conduct regression analysis and modeling to argue for or against predominance. A Daubert or Rule 702 win at this stage (challenging the reliability of opposing expert’s methodology) can defeat class certification.

In the damages phase of an antitrust case, economists, and forensic accountants can quantify overcharges or lost profits using regression models, benchmark comparisons, and/or “but-for” scenarios. They can also provide jury-friendly damages calculations and visualizations.

Expert opinion testimony at trial is needed to present complex economic theories to the jury in a relatable way. It is critically important to choose experts who can withstand cross-examination and connect with judges or jurors. As we noted previously, impressive CVs only take the expert so far.

Part and parcel of the use of expert witnesses at trial in antitrust cases are effective cross-examination, rebuttal, and Rule 702 or Daubert challenges to the plaintiff’s experts. These involve persuasive and legally-grounded challenges to the methodology, assumptions, and qualifications of the opposing expert.

C.   Healthcare False Claims Act Qui Tam Defense

Expert witnesses are essential in defending healthcare-related False Claims Act qui tam cases, which often involve allegations of fraudulent billing, kickbacks, upcoding, or medically unnecessary services. These cases are fact and regulation intensive, and experts sourced from modern litigation consulting firms are crucial in several key areas.

  • Medical Necessity and Clinical Decision-Making. Technical experts (physicians, specialists, nurses) can explain that services were medically necessary based on the patient’s condition and clinical guidelines. These experts additionally can opine that treatment decisions were within the standard of care, even if other physicians might have chosen different treatments. This can undercut allegations that providers knowingly billed for medically unnecessary procedures.
     
  • Billing, Coding and Reimbursement. Healthcare compliance experts or Certified Professional Coders can support the selection of specific billing codes (e.g., CPT, ICD-10) as accurate. They also can testify that errors were not fraudulent, but rather, unintentional or reasonable. They can also explain evolving or ambiguous guidance from the Centers for Medicare and Medicaid Services (CMS) or Medicare Administrative Contractors.
     
  • Damages and Statistical Sampling. Modern litigation consulting firms can supply statisticians, data scientists, and healthcare economists to challenge the relator’s or government’s sampling methodology used to extrapolate damages. These experts also can dispute extrapolated overpayment or damage amounts, as well as show that any billing errors were minor and did not cause financial harm to the government.
     
  • Regulatory and Compliance Experts. Former CMS officials, Office of Inspector General advisors, or healthcare compliance officers – whether resident in the expert firm or contracted for the specific case – can explain how providers interpreted complex and often ambiguous regulations in good faith. They can also testify that internal compliance systems were robust and designed to prevent fraud. And they can argue that alleged violations were clerical or technical, not material or intentional.
     
  • Stark Law1111The Stark Law, also known as the Ethics in Patient Referrals Act, 42 U.S.C. 1395nn, is a federal law that prohibits physicians from referring patients to certain designated health services if the physician has a financial relationship with the entity providing those services. This is intended to prevent conflicts of interest and potential fraud in the healthcare system.   and Anti-Kickback Statute (AKS).1212The Anti-Kickback Statute, a federal law codified at 42 U.S.C. § 1320a-7b(b), prohibits offering or receiving remuneration to induce referrals or purchasing of goods or services for which payment may be made under a federal health care program. This law aims to prevent fraud and abuse in the healthcare system by ensuring that clinical decisions are based on patient needs, not financial incentives.  In cases involving alleged kickbacks or improper referrals, health law experts or AKS/Stark experts can opine whether financial arrangements were within safe harbors or commercially reasonable. They can also testify as to whether fair market value assessments were appropriately conducted.
     
  • Customary Industry Practice. Here, experts can show that the defendant’s conduct was typical of how similarly situated providers operate. And they can opine that industry standards did not clearly prohibit the practice in question, undermining claims of intentional fraud.

V.   Modern Evidentiary Considerations -- 2023 Amendments to Federal Rule of Evidence 702

Counsel dealing with modern litigation consulting firms need to keep in mind recent evidentiary considerations when retaining and working with expert witnesses, in particular the 2023 amendments to Federal Rule of Evidence 702 (“Testimony by Expert Witnesses”). The modern version of Rule 702 developed from a series of Supreme Court cases in the 1990s, most notably the seminal Daubert decision that directed federal trial courts to act as “gatekeepers” when deciding whether to permit expert opinion to be considered by the trier of fact (typically the jury). Subsequent amendments to the Rule, including the 2023 amendment, have added safeguards to ensure the reliability of expert testimony.

When reviewing the record of a prospective expert’s qualifications for a testifying role, counsel should be aware that the expert’s opinion in prior cases may have passed muster by courts ignoring the text of Rule 702, particularly subdivisions (b) and (d). For example, “many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.”1313Mark A. Behrens and Andrew J. Trask, Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence, 12 Texas A&M L. Rev. 43, 50 (2024), citing Fed. R. Evid. 702 Advisory Committee’s Notes on 2023 Amendment.  “Some courts have gone so far as to admit ‘shaky’ evidence because of what they perceived as the ‘liberal thrust’ of the Daubert opinion—even though that opinion was superseded by the 2000 amendments to Rule 702 (and now additionally by the 2023 amendments).”1414Id., citing In re Roundup Prods. Liab. Litig., 390 F. Supp.3d 1102, 1108, 1151 (N.D. Cal. 2018) (allowing case to proceed based upon testimony the court called “rather weak” and “shaky”); Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1237-1238 (9th Cir. 2017), cert. denied sub nom. Teva Pharms. USA, Inc. v. Wendell, 583 U.S. 1180 (2018) (providing that the “interests of justice favor leaving difficult issues in the hands of the jury,” even when they involve “shaky” expert evidence).  Therefore, counsel should educate the expert on— or even better confirm the expert is already versed in— the modern evidentiary requirements, so as to avoid pretrial and in-court challenges to the admissibility of the expert’s opinion under Rule 702.

The 2023 amendment changed the admissibility standard in federal court in meaningful ways that counsel employing expert witnesses need to keep firmly in view. First, the amended rule clarifies and emphasizes that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the offered testimony meets the admissibility requirements set forth in the rule.1515Fed. R. Evid. 702, Advisory Committee Notes on the 2023 Amendment. See also Fed. R. Evid. 104(a).   This is the “preponderance of the evidence” standard that applies to most of the admissibility requirements set forth in the evidence rules.1616See Bourjaily v. United States, 483 U.S. 171, 175 (1987) (“The preponderance standard ensures that, before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration.”).  Second, in addition to the requirement that the testimony is the “product of reliable principles and methods,” the expert’s opinion now must reflect a “reliable application of the principles and methods to the facts of the case.”1717Fed. R. Evid. 702(c) and (d).  The purpose for this addition to the rule, as the Advisory Committee Notes make clear, is to ensure that each expert opinion stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology:

Judicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.1818Fed. R. Evid. 702, Advisory Committee Note on the 2023 Amendment.

Decisions from United States district courts applying amended Rule 702 are emerging and under review by the circuit courts of appeal. As counsel read these and earlier cases, they should be cognizant that many circuit court of appeal opinions published before the 2023 amendments lack precedential value and should no longer be a guidepost for analyzing whether their chosen expert’s opinion will meet the evidentiary standard going forward.1919For an excellent canvas of circuit case law arguably non-compliant with current Rule 702 requirements, see Eric Lasker and Joshua Leader, New Federal Rule of Evidence 70: A Circuit-by-Circuit Guide to Overruled “Wayward Caselaw”, 91 Def. L. J. (June 2024), available at https://www.iadclaw.org/defensecounsel journal/new-federal-rule-of-evidence-rule-702-a-circuit-by-circuit-guide-to-overruled-wayward-caselaw/?b= dVWYaLjZMGKY3U9rKlWc3DObz8aO2K- L5YEuoM72MVtbms7QDfXYZJ1YVASkQ%2FuMa [https://perma.cc/QFP7-H9FG] .

VI.   Client-Facing Issues

As alluded to previously, modern litigation consulting firms, like their law firm clients, are under increasing pressure to meet the demands of clients in areas such as budgeting, billing, and reporting/communication. Added to these traditional burdens are client concerns about litigation funding – how it is influencing litigation costs and outcomes, and whether the financing arrangements can be uncovered through discovery. Forensic accountant experts offered by modern litigation consulting firms can assist counsel with due diligence on litigation funders and help them provide a measure of predictability as to how litigation funding may affect the outcome of a case. 

VII.   Lessons Learned -- Best Practices / Expert Pitfalls / Avoidance

As partners in a modern, global litigation consulting firm, we have seen, through experience and observation, that there are a set of best practices that should be followed by firms like ours. We have also seen how often experts encounter common pitfalls. We are happy to say, however, that well-prepared experts usually avoid them. 

A recurring theme in this article has been that early engagement of expert consultants and witnesses is critical to put the case in the best defense posture possible and minimize overall expense and exposure to the client. Too often, experts are engaged after fact-finding has progressed and/or the evidence adduced through discovery has set parameters that narrow the operational room the expert needs to be effective. As demonstrated through the hypothetical cosmetics case, as well as the discussion of a few types of modern cases, today’s litigation increasingly requires a diversified expert team that can surgically apply expertise where the issues require, bringing compelling credentials and experience to bear.

One pitfall that can trip-up expert firms and their counsel is the failure to maintain attorney-client privilege and work product qualified immunity. We recommend that attorneys review engagement letters of expert firms carefully to ensure that the firm understands it will be entrusted with privileged information and materials during the matter and has systems in place to protect against inadvertent disclosure. Where litigation consulting firms are engaged on the plaintiff side and where litigation funding is involved, counsel should review the engagement letter of the expert firm in conjunction with the funding agreement to ensure that there are no conflicting provisions governing the protection of privileged client information.

VIII.   Conclusion

Engaging expert consultants and witnesses early in litigation matters can dramatically improve the chances that clients will win the case at trial or resolve the matter favorably. Modern, global, diversified litigation consulting firms have evolved to provide ranks of well-credentialed professionals from industry, government, and academia who can address ever-more sophisticated plaintiff allegations and theories with not only opinion testimony but also data analytics, surveys, and other tools to provide a fully-fortified and comprehensive defense. The astute defense attorney understands that the legal defense to modern litigation needs to be supported by insights and techniques not only learned in law school, but also by those honed by degreed professionals in economics, accounting, marketing, consumer behavior, and other fields. The combination of top-flight expert talent and legal trial teams with a track record of winning cases gives clients the best chance to prevent litigation from interfering with business objectives and negatively affecting share value.

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