The Expert Witness Role in Settlements 

By Noah Bolmer

Settlement is the dominant outcome in civil litigation. Across jurisdictions and case types, the vast majority of disputes are resolved before trial, through negotiated agreement. This pattern reflects a convergence of incentives: parties seek to avoid the cost, delay, and uncertainty of trial, while courts encourage resolution to manage caseloads and preserve judicial resources. Settlement can occur at any stage, but it often crystallizes after key procedural milestones such as discovery, dispositive motions, or expert disclosures have clarified the strengths and weaknesses of each side’s position. 

Overview 

Expert witnesses play a central role in shaping the settlement process. Their analyses, reports, and deposition testimony often serve as inflection points in litigation strategy. When an expert’s opinion is disclosed, it can recalibrate the opposing party’s risk assessment and trigger settlement discussions. In some cases, the mere presence of a qualified expert signals preparedness and credibility, influencing negotiations before any formal opinion is issued.  

The settlement process also affects experts in practical ways. Because most cases resolve without trial, experts are rarely called to testify in court. Their work product—particularly written reports and deposition transcripts—can carry as much weight as live testimony. This dynamic underlines the importance of how experts prepare and present their findings. Precision, clarity, and defensibility become paramount, since the report may be the only artifact that influences the outcome.  

In high-stakes or technically complex cases, expert input can determine whether settlement is even possible. A well-supported damages model, for example, may anchor negotiations and provide a framework for compromise. Conversely, a sharply contested expert opinion can entrench positions and delay resolution. Additionally, attorneys use expert reports to support summary judgment motions, which can eliminate claims or defenses before trial. Even when such motions fail, they may narrow the issues and clarify the litigation landscape, making settlement more likely. In this way, expert witnesses help shape not only the substance of the dispute but also the procedural posture that leads to resolution. 

In the Dark 

Once reports are submitted and depositions are complete, experts may have little to no insight into how their analysis is being used by counsel. This disconnect is not a reflection of disinterest or negligence, but rather a structural feature of the litigation process. Attorneys operate within a broader tactical framework that includes settlement negotiations, motion practice, and occasionally trial preparation. Within that framework, expert input is one of many tools, and its deployment is often shaped by considerations that fall outside the expert’s purview.  

Experts may not know whether their report was persuasive to opposing counsel or influenced a settlement offer. They may not be informed if their deposition prompted a shift in strategy or if their opinion was ultimately sidelined in favor of a different narrative. Dog expert Jill Kessler-Miller reports, “I often don’t know the outcome. I certainly don’t know what kind of financial settlements are made. You have to be comfortable with not knowing what will happen.” This lack of feedback can be disorienting for experts who approach their work with academic rigor or professional pride. Without visibility into outcomes, it can be difficult to assess impact or understand how contributions fit into the broader litigation arc. 

Nevertheless, some attorneys do get in touch with experts who have had a positive impact on settlement negotiations. Employment and personal injury expert Dr. Linsey Willis recalls a deposition that led to a settlement:   

And so, they deposed me, and I was all ready. I had a chronology ready, I had it all spreadsheeted with all the red flags and everything that took place [. . .] and they recorded it. And then they had a meeting with mediation—with both sides—and they played their recorded meeting and I, of course, I wasn’t there—and they settled the case right there, based upon the recorded deposition. And the lawyers were so thrilled because they told me that they got more than they would have ever expected. 

Some experts make a habit of soliciting feedback after engagements close. Aviation safety expert Captain John Cox notes “I always want feedback. That’s a continuous improvement and I ask for it from the attorneys every time at the end, ‘Is there anything I could have done better for you?’ I want that from the first phone call to the last one.” Forensic cosmetology expert, Laura DuPriest agrees, “I always ask for feedback and when a case settles [. . .] I always ask for a 10-minute Zoom wrap up call. I do a Zoom because I want to be able to understand if there was something that they felt I was lacking in or could improve.” 

All the Prep, None of the Trial

Newer expert witnesses may enter the field with the expectation that courtroom testimony will be a regular part of their professional experience. In practice, however, expert involvement often concludes with the submission of a report or the completion of a deposition. This means that even well-qualified experts may participate in multiple cases without ever appearing before a judge or jury. Medical product regulatory expert Steve Silverman reports: “I have published expert reports, been deposed, but I have not been to trial yet. I’ve been doing expert witness work for the last three and a half years [. . .] most civil litigation settles.” 

Telecommunications expert Gerry Christensen has been practicing for decades, yet has never had to appear in court:  

You’ll have a deposition, which, for people that are not familiar with that, is you attest to the fact that you’re going to tell the truth as you know it [. . .] It’s recorded, and there’s a transcript. The same goes for an affidavit. That’s a written document that you write down that’s submitted to the courts. One thing that I have not yet experienced is live court testimony because it seems every case I’ve been involved with always settles before it goes to court. 

…But be Ready 

Expert witnesses are expected to prepare as though trial is inevitable. This expectation holds regardless of how likely it is that the case will settle. Reports must be written with the understanding that they could be scrutinized in open court, challenged by opposing counsel, and evaluated by a judge or jury. Deposition testimony must be delivered with precision and consistency, knowing that transcripts may be used in lieu of live testimony or revisited months later during trial proceedings. The standard of preparation does not shift based on the statistical likelihood of settlement; it is anchored in the possibility of courtroom exposure, however remote. 

This discipline serves multiple purposes. It ensures that the expert’s analysis is defensible under cross-examination, but it also signals professionalism and reliability to retaining counsel. Attorneys rely on experts who treat every engagement with the seriousness of trial preparation, even when the case resolves early. Forensic security expert Tom Demont states, “It doesn’t matter to me which way it goes. I have to think that [it was] because of my report and this seriousness of the report that pushed it to settle. Because, you know yourself, the case is the battle of the expert witnesses. Who’s the most believable and makes the most sense.” 

A Positive Outcome 

While expert witnesses are trained and prepared to testify, many view settlement as a favorable resolution. This perspective is not rooted in avoidance or disengagement, but in recognition of the role their work plays in shaping outcomes. A case that settles after expert reports are exchanged or depositions are taken often reflects the persuasive value of the expert’s analysis. It suggests that the information provided was clear, credible, and influential enough to prompt resolution without the need for courtroom adjudication. For experts who take pride in the clarity and rigor of their work, this can be a meaningful form of validation. Forensics expert Sheila Lowe prefers settlements:  

It’s my feeling that settling is always the goal—and I’ve seen expert witnesses advertise on their websites that they have testified in thousands and thousands of cases in a short period of time. That’s a bad idea. I want my cases to settle—and if I had to testify in many cases, I have not done my job well—and my clients appreciate that. 

Attorney and publisher Carl Taylor appreciates expert witnesses who are able to spot gaps in understanding, which can lead to settlement:  

I want somebody who’s going to teach me something I don’t know, and point out to me not just what’s wrong about my case, but more importantly—and this is because I’m a pessimist—always tell me what’s bad that I’m missing. Tell me where there’s a logic gap or where there might be something that I’m not fully comprehending about this case because it helps me with settlement. 

Billing Considerations 

Non-refundable retainers can offer expert witnesses a measure of financial stability in cases that settle early, but their use requires careful consideration. Because most civil cases resolve before trial, experts risk investing time in preliminary analysis, report drafting, or deposition preparation without the opportunity to bill for courtroom testimony. A non-refundable retainer helps mitigate this risk by securing compensation upfront, regardless of how the case unfolds. However, experts must balance this protection against the reasonable expectations of retaining counsel. Attorneys may be wary of large or inflexible retainers, especially in early-stage cases or when the likelihood of trial is low. To maintain trust and transparency, experts should clearly define what the retainer covers—such as initial review, report preparation, or availability for deposition. Trial and appellate attorney Kevin Hensley recommends: 

I don’t think a non-refundable retainer should be very big. I don’t think you should be paid a lot of money for a one-hour phone call—and then the case settles. A reasonable, non-refundable retainer is something I can work with, and obviously the key is just to have everything in writing upfront. If everybody understands what the hourly rates are, I rarely run into billing issues with experts 

Conclusion 

Expert witnesses occupy a pivotal space in litigation, even when their work never reaches the courtroom. The settlement process, which resolves the vast majority of cases, depends heavily on the clarity and credibility of expert input. Reports and depositions often shape negotiations and influence outcomes without the need for live testimony. For newer experts, this can mean building a career with limited courtroom exposure, despite preparing every engagement as though trial is imminent. While the lack of feedback or visibility can be disorienting, many experts view settlement as a positive resolution—one that reflects the strategic value of their work and respects the time and resources of all parties involved. 

For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!