Litigants Are Not Your Clients

A longtime reader of our newsletter emailed us with a problem sometime back and has asked us to share it as a cautionary tale for other expert witnesses:

Expert Witness -- An individual located my expert services online approximately one year ago. He sent me an email and asked to review his case. He disagreed with a medical procedure done on him.

I verbally and in writing explained that my fee is $500.00 for a merit evaluation.

He had previously had an independent peer review performed by the facility's physicians who agreed with the procedure done.

The individual felt that the procedure was not indicated and that it caused him anxiety and performance problems that resulted in his divorce.

After reviewing the case, I concurred with the implanting physicians, the medical facility and the independent peer review's findings.

The individual was not happy with my opinions and wanted a full report.

I sent him my opinions via email and verbally.

He wanted a full report.

I explained that a full report will require an additional fee. My merit evaluation is only for a review and verbal opinions, although I was kind enough to include my opinions in an email in a written format.

He remained convinced that I had not thoroughly evaluated his case and was dissatisfied.

A year later, he served me via certified mail a demand letters asking for $10,000 up front to avoid his filing a small claims lawsuit for breach of contract and not providing a written report.

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Rosalie's Response -- Dr. X, this is an easy one -- I recommend to my clients that they not work with individuals/litigants, because of potential situations like this and similar. Attorneys "know the drill," but individuals do not. You did "legal work" for a non-legal client, and rarely does good come from that.

In the future, if/when you get a call from an individual, simply inform him/her that you do medical-legal consulting work only for attorneys, and they should ask their attorney to call you. If no attorney, pass. Too much risk for the pay.

Lesson learned.

Perils of Non-Objective Testimony

You might have heard some version of the adage, "If you can't be a good example, you can serve as a warning." Glenn Hubbard, Dean of Columbia's business school and expert witness for Countywide Finacial apparently took it to heart according to Matt Taibbi of Rolling Stone. Way to go on shining up the image of expert witnesses Glenn. 

Expert Witness Round-Up

To keep me from pacing during the championship games today, I'm cleaning out my "To Read" stack and want to share just a few of the highlights about expert witnessing from around the internet.

Here's an interesting discussion: Would you want to be a "blind expert," having no idea who the client was until after the initial report was completed?

Attorney Robert Ambrogi takes a timely look at the outcomes when experts sue for libel and discusses the lack of professional guidelines for expert's and the ABA's rejection of proposed expert witness guidelines.

If it's time to work on your deposition and trial skills, SEAK has two workshops coming up in January - Advanced Trial Skills and How to Excel at Your Expert Deposition to assist you.

Speaking of which, I would not want to be up against this opposing counsel in a depoosition or cross-exam. May you never encounter one like him, but forewarned is forearmed.

Expert Witness News & Reading

Happy to be back in Dallas but still getting used to the heat - so I am staying in the air conditioning and getting caught up on my reading! A lot going on in the expert witness world.  Let's start with the David and Goliath tale of the expert who sued a law firm and professional association - and won.

And changes from the courts in rules and rulings:  Attorney Matt Dolman examines the shifting rules concerning expert discovery and  amednews.com takes a look at recent court rulings involving medical expert testimony.

Rounding things out we have attorney Bill Wagner giving solid advice in "So You Want To Be an Expert Witness" and  TREWS' summary of their 2012 Expert Witnss Survey.

Have a great week!

Expert Witness Advertising

Some expert witnesses express concern about their advertising**and being questioned about it by opposing counsel, while others say they let questions about their advertising "bother them all the way to the bank."

One of the keys in responding to such questions is to not take it personally; your poise will speak volumes.  And when answered simply and truthfully, these questions are not usually a problem. 

One expert, in preparing for opposing counsel to ask about his advertising, does a little research of his own. He makes copies of the opposing law firms' ads in their local yellow pages and prints out their website "commercial."  As the questions arise, he pulls these from his bag, and reports that more often than not - dead silence, and then the subject changes.

I'm not sure every expert could pull this off or that it would fly with all retaining counsel, but it does make you smile, doesn't it?

Do you have a ready response to questions about your advertising or does it even concern you?

**Advertising in and of itself is not objectionable or wrong in any way and does not make one a "hired gun." That results, instead, from prostituting oneself by manipulating the facts and opinions to provide a desired conclusion. Ain't no help for that kind of wrong.

See Rosalie in Vegas (and a rare opportunity)

Are you going to the Forensic Expert Witness Association (FEWA) Annual Conference, "How to Be an Effective Expert Witness," in Las Vegas this month?

If you are, don't miss the pre-conference seminar, "Expert Witness Marketing Secrets," presented by Rosalie Hamilton and attorney Jim Robinson. They are looking forward to revealing the secrets behind successful expert witnesses and will cover topics:

• How Attorneys Dig Up Dirt on Expert Witnesses
• Expand Your Practice:  Succeed as an Expert Witness
• Expert Websites
• Expert Billing & Collecting

And the best part? At the end of the day, Rosalie will open up to any question you want ask about this sometimes crazy business - a rare opportunity.  Information on this pre-conference seminar can be found on page two of the conference brochure.

Let me know if you're planning to attend and Rosalie will keep an eye out for you!

In Memoriam – Julius S. Piver, MD, JD

(Guest post by Rosalie)

We are sad to tell you that a beloved client and friend has passed away. 

Dr. Julius Piver, an OB/Gyn and legal consultant, died March 22, peacefully and surrounded by his adoring family. 

Julie would have been 88 next month and was still practicing gynecology and doing expert witness work.  When he notified me two weeks ago that his condition was terminal and I

cancelled advertising and other marketing, one referral service told me he had three active cases just with them.

We should all age like Julie did.

I was privileged to meet Julie and his wife Louise at an expert witness conference more than ten years ago, and then to help Julie with his marketing.  It was fun, because although his years were old, he wasn’t, and quite recently we were still adjusting details like not including dates on CV elements.  Obviously, it takes little time to find out that information, but we didn’t want it to be the first thing an inquiring attorney saw, because age was not representative of Julie.  He obtained his law degree at the age of 62! 

A few years ago, when I was living in Florida, I had some female issues and consulted with Julie, in whom I had the highest confidence.  Meredith reminded me today that when I notified Julie of my situation, it was as though he dropped everything and called me instantly, which further endeared him to us.  After talking with him, I planned, if I did not get satisfactory treatment where I was, to switch roles with Julie, travel to Maryland and jump up on his examining table for a real expert consultation.  I would of course have gotten to visit with Julie and Louise as well, so even though my medical issues resolved, I am sorry I didn’t make that trip.

I don’t get to meet many of my clients in person, so I am grateful for that breakfast meeting with the Pivers so long ago, when we became instant friends.  Since that time, Louise and I have noted each other’s birthdays and other important dates (57 years of marriage for them this year!) and news about our children and their grandchildren.  I also got to see Louise again when I attended a book signing for their daughter Susan Piver Browne, who has become a respected author.

 
We are including a link in case you would like to read Julie’s obituary.

Wherever he is, I hope Julie is entertaining his friends with that little infectious chuckle, and I wish for Louise and the rest of their dear family the comfort and joy of precious memories.

We are fortunate to have known such a special being.  He will be missed.

Rosalie Hamilton