In litigation courts often need to seek from experts information relating to areas outside their expertise. This is particularly the case in areas such as intellectual property litigation, competition and antitrust law, etc. The first and biggest issue turns on who is an expert and what qualifications this person should have. The second issue relates to who selects and appoints the expert and to who the expert addresses his expertise. Thus, in many courts the practice is for “party experts” to be presented by both sides, each of whom will present reports supporting their party’s case – the degree of partisanship of such reports depends on the degree to which an expert is required to be independent of his or her party or party’s legal counsel.

consulting expert is an expert that legal counsel consult to explain technical or other issues to them in the course of preparing a case, but who generally will not be used at trial and hence benefits from Privilege. This is important because all information provided by counsel or the client to a trial expert may be required to be disclosed to the other party under typical Discovery rules.

In other court systems, experts will usually be appointed by the court to report to it, albeit often on the recommendation of the parties. Even in court systems where party experts are the norm, a court usually also has the power to appoint its own expert (in the US often called a “special master”) to provide the court with an independent assessment of complex issues. US standards for who may serve as an expert were set in the 1993 US Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals 

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