Process
How to Retain an Expert Witness
Retaining an expert witness follows six steps: a complimentary preliminary screening, a conflict check and expert selection, written engagement terms, record review with a preliminary assessment, a report drafted to the admissibility standard governing the forum, and deposition or trial testimony. Themis Expert Witness, LLC runs that process for attorneys in California, Washington, and Oregon, with Dr. Alvaro Alban, MD, MBA handling emergency medicine and medical causation personally and sourcing vetted network experts in every other discipline. Screening is free and carries no obligation, and is limited to identifying a potentially appropriate expert discipline, checking availability and conflicts, and determining whether the submitted materials may be suitable for expert review.
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Complimentary preliminary screening
You describe the matter in a short call or email and get back an honest read on which expert discipline the issue points to and whether the materials look suitable for expert review.
Screening takes four things: the procedural posture, the venue, the claims or charges at issue, and the schedule you are working under. A complaint, a charging document, or a two-paragraph summary is enough to start.
What comes back is a candid read on the expert discipline the issue points to and whether the materials provided look suitable for review in that discipline. Often the discipline counsel assumed was needed is not the one the issue actually turns on. Where the materials will not support the opinion counsel was hoping an expert could give, that is said at the screening rather than after a report has been paid for.
Screening is deliberately bounded. It does not include legal analysis, evaluation of claims or defenses, calculation of deadlines, or an opinion concerning whether a lawsuit is viable. Those determinations belong to counsel.
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Conflict check and expert selection
We confirm there is no conflict with any party or counsel, then identify the expert whose credentials and testimony history fit the specific issue in dispute.
The conflict check runs against parties, counsel of record, insurers, and any related matter previously reviewed, and is confirmed in writing before anything substantive is discussed. A conflict that first surfaces at deposition is unrecoverable for the opinion.
Selection follows the issue, not the label on the file. Dr. Alban is the expert on emergency medicine and medical causation. For structural engineering, toxicology, forensic accounting, appraisal, and the rest, he identifies an independently credentialed network expert and vets them: current board certification or licensure, active practice in the relevant area, and a review of prior testimony and any exclusion rulings. He stays on through report review and trial preparation.
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Engagement and fee schedule
You receive written engagement terms and a fee schedule before any billable work begins, so the first invoice contains nothing you have not already agreed to.
Terms are set out in writing: hourly rates for record review, report drafting, deposition, and trial testimony; any retainer; the billing cycle; travel. Deposition and trial time commonly bill at a higher rate or against a half-day or full-day minimum.
Deposition fees deserve a specific note. In California, payment of an expert's reasonable and customary hourly fee for deposition testimony is addressed by Code of Civil Procedure section 2034.430, which also addresses tender of the fee and the court's role where reasonableness is disputed. Washington and Oregon address the subject through their own discovery rules. What any of these provisions currently requires, and how they apply to a given deposition, is for counsel to confirm — but settling who pays before the notice issues avoids an argument later.
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Record review and preliminary assessment
The expert reviews the file and gives you a verbal preliminary assessment of the opinion, its strength, and its vulnerabilities before any report is written.
What is needed depends on the discipline: medical charts with nursing notes and imaging for a causation review, accounting records for a damages analysis, plans and inspection reports for a construction defect matter, plus pleadings and relevant transcripts. Incomplete production is no reason to wait: identifying what is missing is often the review's most valuable early output, and it folds into your next discovery request.
The preliminary assessment is verbal and covers three things: what the record supports, what it does not, and where opposing counsel will press. An early candid read is worth more than a favorable one. An opinion that will not survive cross-examination has negative value, and learning that during discovery still leaves time to change course.
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Written report
The report states each opinion, the material relied on, and the reasoning connecting the two, drafted to the admissibility standard that governs your forum.
A report that holds up identifies the records and data reviewed, sets out the methodology, states each opinion with its basis attached, and marks the limits of what the evidence supports. Opinions without a traceable path from material to conclusion draw motions, however well credentialed the witness.
The governing standard shapes the drafting. California applies the gatekeeping analysis of Sargon Enterprises v. University of Southern California under Evidence Code sections 801 and 802, with the Kelly standard reserved for novel scientific technique. Washington applies Frye general acceptance to novel scientific evidence alongside ER 702. Oregon uses the State v. Brown and State v. O'Key framework under OEC 702. Federal matters in the Ninth Circuit apply FRE 702 as amended in December 2023, which made the proponent's preponderance burden explicit. Disclosure timing comes from your scheduling order; the report is built backward from it.
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Deposition and trial testimony
The expert prepares with you before the deposition, testifies within the four corners of the report, and remains available through any exclusion motion and trial.
Preparation is a working session with counsel, not a rehearsal: the likely lines of attack, the weakest inference in the chain, and the questions best answered with a plain concession. At deposition the discipline is narrow answers, no volunteering, and no opinion not already in the report. Transcripts are where motions to exclude get built.
If such a motion follows, the report and transcript are what the court reviews, which is why the reasoning was written to be traceable. At trial the same opinion has to be explained to a jury without losing accuracy. Testimony is available in state and federal courts throughout California, Washington, and Oregon. Remote depositions are routine in all three states, and remote or hybrid trial testimony is permitted in many courts subject to local rules.
What we need from you to start
For the screening call: venue and case number if one exists, the posture, the claims or charges, the parties and counsel for the conflict check, and any deadline set. A copy of the operative pleading helps; nothing else is required.
Once engaged, the document request is specific to the discipline and comes as a list rather than a general demand for the file. Sending everything is rarely efficient; the right records early save more review time than they cost to assemble.
What it costs
Screening is free. After that, work is billed hourly against a written fee schedule, with rates that vary by discipline, record volume, and whether the matter reaches deposition or trial. Testimony time generally bills higher than review, often against a half-day or full-day minimum. A retainer is typical.
No fee is ever contingent on the content of an opinion or the outcome of the case, and no expert in the network works on that basis. Deposition fees are the noticing party's obligation. Rates are quoted in writing for your matter before you commit; a range published on a website tells you almost nothing about what your case will cost.
When to bring in an expert
Earlier than most attorneys do. Pre-suit, an expert review tells counsel what the technical or medical record actually shows and what it would need to contain to support an opinion — input to counsel's decision about the claim, not a substitute for it. During discovery, the expert helps shape it: which records to demand, which providers or custodians to depose, which testing matters. Both cost less than reacting to a defense report late.
Retention that waits until the disclosure date is close forfeits all of that. The expert builds an opinion from whatever the record happens to contain, and gaps that could have been filled in discovery become permanent weaknesses. California's expert exchange procedure is addressed by Code of Civil Procedure section 2034.210 and following, with Washington and Oregon addressing disclosure through their own rules and case schedules. Nothing here calculates those dates or advises when to retain in a given matter — the schedule and the retention decision are counsel's, made against the current rules and the order in the case.
Consulting expert vs. testifying expert
A consulting expert advises counsel and is generally treated as work product; a testifying expert is disclosed, and the rules address discoverability of the material relied on. The distinction is a strategic choice rather than a formality, and it is counsel's to make in light of the rules governing the forum. Attorneys commonly retain in a consulting capacity first, before deciding whether the opinion is one they want in front of a jury.
If the review comes back unfavorable, a consulting engagement lets counsel absorb that privately and adjust. Converting a consultant to a testifying expert later is common, but it should be deliberate and made with the discoverability consequences confirmed against the governing rules. The engagement letter states which capacity applies from the outset.
Frequently Asked Questions
For most matters, the screening call happens within a day or two of first contact, and a conflict check and engagement letter follow within a few business days. Where the specialty is one Dr. Alban handles personally, engagement can be same-week. Where the case calls for a network expert in another discipline, identifying and vetting the right candidate typically adds a week or so. If you are working against a near-term disclosure deadline, say so at the outset and the timeline compresses accordingly.
It depends almost entirely on record volume and how complete the production is. A focused causation review of a manageable chart moves faster than a construction defect matter with years of plans, change orders, and inspection reports. A realistic date is given after the preliminary assessment, once the expert knows what is actually in the file. That date is set with your disclosure deadline in view, and if the schedule is not achievable you are told before work continues rather than after.
Yes. There is no fee and no obligation to engage. The purpose is to identify the expert discipline the issue points to, check availability and conflicts, and determine whether the materials submitted look suitable for expert review — information counsel should have before spending anything. Where the materials will not support the opinion counsel was hoping an expert could give, that is said at the call. Screening does not include legal analysis, evaluation of claims or defenses, calculation of deadlines, or a view on whether a lawsuit is viable. Billing begins only after written engagement terms are in place and have been accepted.
You are told directly and early, usually in the verbal preliminary assessment before any report exists. No opinion is adjusted to fit a retaining party's theory, which is precisely what makes the favorable opinions credible under cross-examination. If the review is unfavorable and the engagement was in a consulting capacity, that assessment is generally protected work product and you can adjust your approach without having disclosed anything.
Yes, and it is often the most efficient point to do it. A pre-suit review tells you whether the available records support the claim, what additional documentation you should obtain before filing, and what a defense expert is likely to say. Pre-suit engagements are usually structured in a consulting capacity, which keeps the analysis protected while you decide whether to proceed and who, if anyone, you want to disclose later.
Both, and in criminal matters for both prosecution and defense. Over more than twenty years and 150-plus supported cases, the work has come from both sides of the docket in comparable measure. That balance is a practical credibility asset: an expert whose entire engagement history sits on one side invites a bias cross-examination that has nothing to do with the merits of the opinion and everything to do with the witness.
Jurisdiction-specific general background on expert disclosure and admissibility is on the California, Washington, and Oregon pages. Nothing on this page is legal advice, and nothing here calculates a deadline or determines whether an expert is legally required in any matter. Those determinations rest with licensed counsel, who must confirm them against the current rules and any order in the case.
Complimentary preliminary screening
Start with a complimentary screening
Preliminary screening is complimentary. Send the posture of your matter — jurisdiction, claims, and the schedule you are working under — and Dr. Alvaro Alban, MD, MBA will identify the expert discipline the issue points to, check availability and conflicts, and tell you candidly whether the materials look suitable for expert review before you retain anyone.
- Service area
- California, Washington, and Oregon — state and federal courts, in person and by remote deposition.
- Phone
- (347) 860-4763