Spend Your Profits on Yourself

End of the Year Tip:

If all went as planned, you've had a profitable year. But that has its own little downside - now you have to pay taxes on the profit. The upside is - you have two more days to invest some of that profit in your business. See if you can advance register for continuing education classes in your field; pre-pay for business development or marketing services; or purchase books, software, or other products that will benefit your practice. Check with your tax consultant about using this year's profit now on building your business for the coming year, instead of giving that profit to the government.

Website Question Made Our Day

In a recent email to our newsletter subscribers, Rosalie gave her views about the current economy and the subsequent need for professional service providers to spark up their businesses. The very first email received in response was from a long-term client asking whether his website that we had created several years ago needed to be updated. The kicker that we found so inspiring - this expert, still fully practicing both in his profession and in legal work, is 75 years young! May we all stay so ignited and inspired for years to come.

Marketing Your Professional Services Is Not Optional

Happy Thanksgiving! In appreciation of all our experts I would like to share one of Rosalie's best essays about expert witness marketing. If you are one of the many who, like my mother Rosalie, will be traveling this week (she's headed to her hometown, Wichita Falls, TX), print this out and you'll have something to read while waiting at the airport!

Marketing Your Professional Services Is Not Optional --

by Rosalie Hamilton

Sometimes professionals say, “I don’t market my services; I rely on word-of-mouth to get business.” They don’t seem to realize these two statements are contradictory -— if they are getting plenty of referral business, they have marketed their services quite well! The issue is not a decision of whether or not to market your services, but is instead a decision of whether to assume responsibility for it and become more effective at it.

Actions you might not realize are marketing decisions:

• What you name your business
  

• What information you print on your business card
  

• How you let people know you are available
  

• How your resume or company brochure looks
  

• Who answers the telephone and how
  

• How you dress for encounters with prospective clients
  

• How you respond when someone asks what you do
  

• How you treat not only clients and prospects but also employees, associates and even competitors
  

All of these factors contribute to the image people form of you and are far more critical to the success of your business than you might realize.

For instance, does your business name indicate what services your business performs? If it doesn’t, is your business name accompanied by a tagline that states your field of work?

Does your business card provide all necessary data such as the type of work performed and your complete contact information? As a marketing consultant reviewing and analyzing professionals’ marketing materials, I see cards with important information omitted, such as the email address and even telephone area codes. I’ve seen two cards with no zip code after the address. What do these cards say about the professionals, i.e., what impression does their marketing create?

Particularly if you have chosen not to advertise your services, how did you announce that you had opened a business or practice? However you did it, and whether you did it effectively or not, it was a marketing action.

You're Not Alone

Fortunately, you’re not expected to already be knowledgeable about marketing, any more than you would expect people in other professions to be proficient in your discipline. Marketing help is available from books, magazines, the Internet, knowledgeable friends and marketing professionals. The key point is to realize that the decisions and actions that create others’ perception of you should be planned and well thought-out, as they constitute your marketing.

Prospective clients have no way of knowing what quality of service you will provide, so they must take clues from the appearance of your business card, stationery, resume or brochure and other materials, and website; your physical appearance and grooming; your manners and communication on the telephone; and even your promptness in returning phone calls.

The quality of your materials influences the perceived value of your services. Printed materials, whether produced professionally or on your personal computer, don’t have to be costly, but they should be error-free. Typographical, spelling, punctuation and grammatical errors in printed materials are inexcusable. We all make mistakes as we create and craft, but editing, correcting and proofreading comprise the second half of the job.

It is critical to have someone else proofread your writing and composition, because we all have difficulty finding our own mistakes. I frequently notice errors in professional brochures, even some that are quite expensively prepared. I have to conclude that not enough people proofread them.

Your Office Speaks

Often the initial impression you make on a prospective client results from the phone response in your office. If the phone rings several times before being answered by a person or a recording, the caller feels that his time has been disrespected. If the person answering is flippant, cold or, worse, rude, your image has been tarnished, perhaps permanently.

The time it takes you to return calls answered by someone else on your voice mail or through an answering service is also a factor in the prospect’s view of your services. An inquirer can’t help but associate your promptness or tardiness with your perceived work ethic and respect for deadlines.

In addition, if you determine that you can’t or won’t accept the proposal, are you as polite and as helpful as possible under the circumstances? You may not want this engagement, but you do want this person to be a referral source—the most effective kind of marketing.

Appearances Do Matter

“Dressing for success” doesn’t necessarily mean wearing a suit for a man, or stockings and low heels for a woman if she wears a dress or a suit with a skirt. What it does mean is deliberately deciding what to wear for encounters with prospective clients, keeping your impression in mind. Whether the most effective look would be a business suit or other attire representing your profession or trade is an individual decision, but make it a conscious decision, because it matters. Perhaps a person could be sloppy or careless in appearance and be meticulous in work performance, but the prospective client has no way of knowing that—he can only conclude by what he sees and hears.

Does Your Dry Cleaner Know What You Do?

When asked what services your company provides, do you respond completely, smoothly and briefly or do you stammer, give a terse, incomplete description or ramble? Articulating your area of expertise and services is the core of marketing. Compose a brief statement that explains your work, using words people outside your profession will understand, and practice saying it aloud.

Business owners don’t always realize that their services are publicized, either positively or negatively, by individuals they might not consider referral sources or detractors. Employees discuss their work with others. Competitors speak either respectfully or resentfully about you, based, at least in part, on your attitude and actions toward them.

Remember that when you interact with another person, regardless of who the person is, you are marketing yourself and your services. You are enhancing his picture of you, or you are diminishing it.

____________________

Performing marketing is NOT optional. Marketing is the actions, whether deliberately strategized or unplanned, that communicate the availability, quality and value of your services. Marketing shapes the image people hold of you and your business and reflects your judgment, thoroughness and professionalism. You can take charge of this message and make it contribute to your success.

by Rosalie Hamilton, the Expert's Expert, author of The Expert Witness Marketing Book and President of Expert Communications, the business development firm helping experts get more clients.

© 2007 Expert Communications. All rights reserved. www.expertcommunications.com

Expert Witness Groups and Events

Expert witness Dr. Gerry Goldhaber emailed me this week about an upcoming event for expert witnesses. He would like to invite expert readers in the NYC area to attend the Gotham Networking Group's first meeting of expert witnesses on November 26 at 12:30 p.m. at Fabio Piccolo, 230 East 44th. The cost of the luncheon is $40.

The Gotham Networking Group consists of over 550 professional members. There are already two lawyer groups and Dr. Goldhaber decided enough of the members and their colleagues were expert witnesses to start such a group with the purpose of helping each other professionally and personally. For more information, email Dr. Goldhaber at
geraldgoldhaber@yahoo.com or phone his offices at 212-379-6661.

Another group that many of you are familiar with is expanding and each chapter has regular events scheduled. The Forensic Expert Witness Association, or FEWA, was started in 1994 in Orange County and now has chapters throughout California and a new one starting in Texas as well. Check out their events and the other services they offer their members at the FEWA website.

And last but not least, I strongly recommend all experts attend SEAK 's Annual National Expert Witness Conference. This year's event is scheduled for June 19-20, 2008 in Hyannis, MA (Cape Cod - beautiful at that time of year!) They haven't put up the brochure on their website yet, but I will let you know as soon as the do.

Expert Witness Questions Holiday Cards

Like it or not, the holiday season is upon us. What business development activities do you use during this season? Do you send cards or gifts to your clients (past and present), referral sources, and prospects? Do you sign each card personally?

One expert has some questions about this and sent me the following email this past week:

It is coming up on the holiday season and in past years the firm I worked for mailed a card to clients, past and present. I considered it a good way to put our name in their head again. I also usually tried to personally sign all the cards (no rubber stamp or pre-printed signature). I also tried to write a brief message to those that I have worked with and recall a recent event, like if they had just had a child in the past year, a note to enjoy the holidays with their new child. Nothing too involved, just a little something. I have also had several clients over the years mention how nice it is to get a card with a personal touch.

This year the idea has come up to send a "nice" professional e-mail greeting in place of the card. Obviously no personal greeting or signature. My first thought is tacky, same as I have heard from a few people I have discussed this with. What are your thoughts? How about your readers?

I forwarded this email to Rosalie and here was her response:

This is the first time I've had this question posed, and I've never thought about it. My first thought is to use it to present a nice compromise - send an email instead of a postal mailed card, but do each one individually, with the personal greeting just for them. It would be easier, quicker and less costly than to do the same thing with postal mailed cards.

A group email doesn't sit well with me at all. I'm not even fond of pre-printed cards with no personal signature or note, although after signing and hand-addressing 200+ cards I'm not nearly as critical ; )

Readers - what are your thoughts? What do you plan to do this year? What have you done in the past?

Attorneys Getting the Most Out of Their Experts

The Expert Witness Committee of the ABA's Litigation Section publishes a quarterly "Expert Alert" for attorneys about working with expert witnesses. The latest issue (Fall 2007) features the article "Tips From the Experts: Getting the Most Out of Your Experts." Although written for attorneys, it highlights some best practices for the attorney-expert relationship. Making the process easier for the attorney is definitely good marketing, so it's worth a read.

Growing Your Expert Practice

Some time ago we did a random survey of our newsletter readers about the issues they face in building and expanding their expert practices. Experts mentioned five concerns/challenges above all the rest:

1. Identifying and locating the specific attorneys who handle issues issues involving their expertise, reaching them at the right time, and targeting the decision maker.

2. Attaining visibility/credibility and educating the attorney about their expertise and how they differ from the competition.

3. Avoiding appearing like a 'hired gun' and how to defend marketing and advertising on the stand.

4. Choosing the most effective venues in which to advertise and determining how attorneys find experts.

5. The time and money involved in effectively marketing an expert consultant practice.

Are these still the main challenges? What is the biggest issue you face in your practice today? What questions would like to have answered that would help you achieve your business development goals? Please leave your thoughts in the Comments below.

Expert Witness Deposition on YouTube

Expert witness video has made it to YouTube. Check out this video clip from the deposition of an accident reconstruction often retained by insurance companies. Search a little through the videos - there is a surprising amount of expert witness related material.

Practice Management Tips

Although written for lawyers, I found many realistic tips applicable to any professional service providers - in a solo practice or firm. Written by Jason Krause for the ABA Law Journal, the article is titled "Law Hacks - 101 tips, tricks and tools to make you a more productive, less stressed-out lawyer."

Krause includes both high and low-tech tips on subjects as varied as email to time management. Don't miss tip 101 - I let loose a big guffaw when I got to that one!

Too Much Litigation Experience?

In a blog post at Science Evidence, attorney Cliff Hutchinson comments on a Georgia trial court's standards and decisions regarding expert testimony in the case Bowers v. Norfolk Southern Corp.

Does the number of cases an expert has been retained on determine his classification as a "hired gun"? If so, does this warrant a stricter application of Daubert to the admissibility of that expert's opinion? Can wishy-washy terminology be cause for exclusion of an expert's testimony? (Take note of the italicized terms in his post).

Computer Maintenance as Marketing Tool

One of the very best techniques for generating more business for your expert practice is the quality of your work. Especially in the deadline/calendar-dominated legal world, your responsiveness, promptness and dedication to meeting agreed-upon dates of completion can mean the difference in creating a source of referrals or ruining your reputation.

When you can't access your files, data, report, etc. because your computer crashed - your attorney-client is not going to be sympathetic. With all the technology even the smallest firm uses today, I think we should all have a dedicated computer tech on staff. Since that is not realistic, it would be wise to know some basics that can help prevent the worst from happening (but keep a techie's number on hand at all times just in case ).

This post from The Working Guy, Christopher Null, “How to Keep Your PC From Crashing” explains seven steps even a novice can take to prevent disasters such as losing that expert report due tomorrow.

Top Ten Credibility Killers

As an expert witness, the most effective marketing technique in your arsenal is the quality of your work. In addition to the strategies you can use to improve your consulting, reports, testimony, etc., you would be wise to also steer clear of the following damaging mistakes:


1. Accepting conditional engagements or contingency fees.

2. Reporting or testifying on matters beyond your area of competence.

3. Using misleading data to form or express opinion.

4. Not meeting deadlines.

5. Allowing attorney client to unduly influence your opinion and/or report.

6. Accepting a case with a known conflict of interest.

7. Contradicting prior positions or statements.

8. Ignoring available data.

9. Producing unclear or incomplete reports.

10. Unnecessarily discussing the case with others.

It Doesn't Have to Be Complicated

When looking at growing your expert practice, have you ever thought -

"I just don't know where to start. I could list in directories, but - which ones? And what do I list under? Should I do something to my website? What should I add, take away, or change? Should I try publishing articles or speaking at conferences? What about trade shows? Does direct mail still work? How about an email newsletter? Would press releases and media exposure help my expert practice? Do cold calls have any value?"

When looking at the various marketing options out there, I hear from many of you that the choices are just too overwhelming. I think that's why many experts end up just putting their time and money into the latest 'sounds good' offer to hit their email inbox. While one of my recommendations is to always track your marketing efforts and subsequent results (a topic ALL of its own), you can simplify the decision-making process even prior to that.

At its most basic, marketing your expert services is the process of making the attorneys who need your services aware of your availability and of the value of your expertise. It is effectively communicating (to the right audience) the four "C's" that attorneys are looking for in an expert consultant:

- Competence

- Credentials

- Communication Skills and

- Credibility

So to sum it up, marketing your expert services consists of three steps:

1. Identify the attorneys (types of cases handled, geographic area, etc.) who need your services.

2. Let them know you are available as an expert legal consultant.

3. Establish an identity and consistently reinforce your strengths in each of the four C's.

Yes, there will still be specific decisions to make. But once you really get the basic purpose of your actions, those decisions are not nearly as difficult.

Marketing Doesn't Have to Hurt

I frequently talk to experts who initially believe that experts shouldn't market. But as our conversation continues, it becomes clear that the foundation of that belief is a misunderstanding of what "marketing" is for professional service providers.

Marketing your expert services does not mean following some rigid set of defined steps and cookie-cutter actions. Some experts advertise, some don't. Many experts send out announcement postcards, while others mail newsletters, and still others (to their detriment) don't make use of their contact list in any way.

Your most successful marketing actions will be the ones that play on your strengths. If you are comfortable speaking to groups, look into CLE opportunities where you could speak on your area of expertise for attorneys who work on cases that involve those issues. Offer to make a a presentation for a section of your local bar association.

If you are more comfortable writing, then write articles about your subject. They don't have to be published in a legal publication. In our “Google” style world, an article published almost anywhere (academic journal, association publication, online newsletter, etc.) can increase your exposure and enhance your credibility.

Sum and substance - focus on what you are good at and comfortable with, and marketing your expertise becomes much less onerous and, dare I say it, even enjoyable.

Note: Rosalie would have my head if I didn't remind you that everything you say, write and do can and will be cussed and discussed and used against you by opposing counsel.

Expert to Expert Advice Request

As I have said before, so many experts express frustration about encountering situations in the legal industry that they have no experience with in their own field and thus no guidelines. You, our readers, have been very generous in sharing your experiences and best practices with other experts, so on behalf of an expert who contacted me last week, I ask for your assistance.

Here is the question:

“If an expert talks to one side in a case and, having heard some details about the case and perhaps done a bit of research, decides that in fact she cannot support that side's position...but she could support the opposition's side...is it unethical or otherwise looked ill-upon if that expert then accepts work for the opposing counsel on the very same (or other similar) case?”

Getting Paid for Your Work - Know the Local Statutes

As you may know, we have had an ongoing discussion about experts getting paid. How do you make sure you are paid? Should you require a retainer? If you aren't paid, should you sue the attorney? Can you refuse to hand over your expert report unless you are paid? Can you/should you require payment for services rendered prior to participating in a deposition or testifying in court?

In a recent email on this subject, an expert in California wrote, “I found out a few years ago that here in California, the attorney requesting the deposition is not required to pay the expert a week before or even an hour before!”

This was new to me, so I checked with Jim Robinson, an attorney in California and president of JurisPro Expert Witness Directory. He emailed me back with the applicable section from the California Code of Civil Procedure 2034.450, which says:

a) The party taking the deposition of an expert witness shall either accompany the service of the deposition notice with a tender of the expert's fee based on the anticipated length of the deposition, or tender that fee at the commencement of the deposition.

b) The expert's fee shall be delivered to the attorney for the party designating the expert.

c) If the deposition of the expert takes longer than anticipated, the party giving notice of the deposition shall pay the balance of the expert's fee within five days of receipt of an itemized statement from the expert.

The requirements for payment vary from state to state. As such, it is important for you to investigate and understand the applicable standards and laws in each state for which you might be called upon as an expert. It is also wise to double check any information you may hear from fellow experts, or even attorneys, regarding payment for your consulting and testimony.

Just as your CV,business cards and stationery, and website are key to establishing a successful expert practice, so are your engagement agreement, billing practices and collection policies. The more you know, the more you can do to protect your practice and successfully promote your expertise.

Expert Witness Directory Time

July is the month when several expert witness print directories are published. My sister-in-law, Lisa, frequently checks our clients' listings and ads in both online and print directories and publications, and sent me some thoughts about the errors and omissions she frequently finds.

She suggests you check your online listings on a periodic basis (your information could have changed and need to be updated, or the computer gremlins could have attacked!), and examine your listings and/or ads in the print directories and publications as soon as they are published. If an error occurred on the part of the publication, you might be able to get all or part of your money back or negotiate for an extended run (with corrections of course).

Lisa recommends that you check for completeness (she often finds suite numbers missing), accuracy, and logic - did you include as many ways as possible for a prospect to reach you? If you have a website, did you include the address? Is your area of expertise clearly stated (in the terms an attorney would use to find you)?

If the publication lists experts by categories, are you listed in the categories you specified? Are you, heaven forbid, listed in any that you shouldn't be?

This is the time to check. I cringe when experts lose out on potential business due to minor typos and similar mistakes.

How Attorneys Vet Experts and Other Info

In their June newsletter, IMS Expert Services published an article by attorney Robert Ambrogi on How to Vet an Expert. He lists some valuable resources that you can use to check out the opposing expert or, even better, investigate yourself using the links he provides and see what information attorneys are reading about you.

One thread in the Rominger forum for expert witnesses has a couple of interesting "war stories" from experts. Hopefully you haven't insulted the judge as one expert thought he had!

Everyone who uses a computer and accesses the Internet or uses a network faces an increasing number of threats. Preston Galla of PC World has a list of 15 great, free security programs that will help you fight back.

Is Anybody Out There?

Am I the only one working? I've gotten more "Out of Office" automatic email responses and voice mail answers today than I've ever had. Heck, even the spammers seem to be on vacation.

If you are working (or pretending to) and experiencing the same thing, this might be an ideal time to evaluate your business development efforts.

If you are listed in any online directories, look at your listing with fresh eyes. Is everything accurate? Has anything changed or is there something that should be added or deleted? How effective has that particular listing been in producing inquiries?

How long has it been since you reviewed your website and marketing materials - are they current and accurate? Is your CV up to date?

When was the last time you sent out a mailing to your contact list? Remember, it doesn't have to be a big deal, a simple postcard will do - you just want to stay on your prospects' radar screens.

But, business aside, don't forget to take a few minutes to enjoy the fireworks, a cookout, and time with family and friends. Have a great July 4th!

Experts Can Sue and Be Sued

Jim Robinson's post on the Expert Witness Blog today is a must read. In Expert Witnesses Can Both Sue and Be Sued, Jim discusses issues from a key California case that probably are not known by most experts.

Expert Witness Key to $2M Verdict

Expert Witness Key to $2M Verdict (Massachusetts Lawyer Weekly)- After a certain number of cases, it is easy to forget the importance of what you say and do in your work as an expert and the possible consequences. You've heard the saying that many cases these days are settled or decided based on each side's experts; this is a prime example.

Sidenote: I hope the experts in this case use the publicity from this in their communication and marketing efforts!

Experts - Critique Your Communication Skills

With demonstrative evidence key to most litigation, you must remember not to let the visual aspects distract from your testimony. Trial lawyer Elliott Wilcox recently wrote an article for attorneys on this very subject. Called "Monkeys in Business Suits", it's a humorous look at how NOT to compete with the images you use in court.

How Do You Come Across on the Stand?

Do you know how you come across in deposition or courtroom testimony? Do you REALLY know? Steven Mikulan wrote a great article in LA Weekly about one expert's testimony in the Phil Spector murder trial.

Mikulan highlights the positive aspects of Dr. Louis Pena's testimony in reporting how "unbelievably believable","unruffled", and "downright helpful" he was, especially his skill in "breaking down esoteric subjects into homey analogies that everyone could understand.

Mikulan also points out Dr. Pena's he little 'tic' - "a nervous habit of pulling up one of his socks while on the witness stand," and describes how the cross-examination employed a common tactic of trying to force an expert to disprove a negative.

Let me know if it gives you any insight into your own habits and communication skills.

Attorney Refuses to Pay Expert for Deposition

Payment for expert consultants to the legal community is an ongoing issue (and one we addressed in "Expert Pay Discussion"). Here is the most recent story I've heard:

Hi Meredith
I have a question for your readers: Prior to giving a deposition I always ask for a payment to cover my time and expenses, refunding any extra amount. I recently had a problem with a client who balked at this and said he would "personally" insure I was paid on time.

Well that was January and still no payment -- a few weeks ago they (the deposing attorneys) claimed never to have received the invoice -- an old scam I've run into many times in my consulting career. My question is, if I don't receive the up front payment, do I have the right to refuse to appear at the deposition, especially if I've been subpoenaed to appear?

The subpoena in this situation complicates matters in my mind. Any advice from the trenches?

Attorneys' Thoughts on Expert Witnesses

At LinkedIn, a social networking site, one user posted several questions about expert witnesses, such as how attorneys find experts, who does the searching, and how much they pay. The attorney responses are interesting and might give you some ideas on ways to reach your prospects and how attorneys see experts.

President Bush and Expert Witnesses

Here's one to make you think: As reported in LegalNewsline.com President Bush just signed an executive order that prohibits expert witnesses being paid on contingency.

Even if not legislated, hasn't the avoidance of contingency payment been understood, accepted, and practiced by experts for quite some time? Opposing counsel has always been willing to tear up an expert witness for such an arrangement, so most retaining counsel and experts have avoided the practice. (Also, I thought it was already illegal in some states.)

Am I missing something?

Build Your Network at Conferences

'Tis the season for conferences, seminars, and association meetings. I know some of you will be attending the SEAK National Expert Witness Conference and probably many others will be attending conferences by the organizations in their area of expertise.

Take a boatload of business cards with you and talk to everyone you can. Find out about them, how you might be able to help them or if you know someone you could introduce them to that would be of benefit to them. Your associates in your field can be a great source of collaboration and referrals. But start by building a relationship - people work with (and refer!) those they like from a human perspective first and foremost.

If you go to any expert witness conferences - do the same! Many cases require more than one type of expert. If you are able to provide your retaining attorney with the name of another expert he needs for the case, you become an even more valuable resource for the attorney and the expert appreciates the referral and may reciprocate.

Don't neglect to attend the networking functions and meals where you can meet one on one with the speakers, mostly attorneys and judges (and ALWAYS have your business cards handy!). Don't sell yourself but do introduce yourself and provide a face to go with your name. If you can, get a business card from them and follow up with a note of appreciation regarding their presentation.

Get Better Results from Your Google Searches

Google offers a great "cheat sheet" on different tricks you can use to get the best results from your searches http://www.google.com/help/cheatsheet.html

Requirements for a Successful Expert Practice

This article was written by attorney Edward Poll of LawBiz.com and actually addresses attorneys and what he has discovered every lawyer must do to be successful. But I think if you substitute "expert" for the word "lawyer" in each of his recommendations, his wisdom applies equally well in most cases (but not all - for example, experts should NOT "sell solutions" as suggested in number three on his list!).

Read his quick list of ten requirements out and see what you can apply to make your expert practice more successful.

Protective Billing Practices for Expert Witnesses

One comment in response to my post about experts discounting their fees I think could be helpful to many of you.

"We have adopted policies to protect ourselves against being abused at the end of cases.

* Nonrefundable portion of retainer. Experiences where the mention of our being hired facilitated settlement and suggestions that we shouldn't earn a fee because we did no work caused this one.
* Apply the retainer to the last bill.
* Must be current at important milestones, e.g., prior to deposition or trial testimony or issuance of final reports.
* Regular billing. This not only avoids surprises, but starts the clock running on a/r.

Nothing new in the above, but simple things like staying on top of billing, and exercising leverage when one has it (prior to something happening that the lawyers want)."

Caution to Experts Who Discount Their Fees

In our recent discussion about collecting fees owed from attorneys, several experts reported instances in which they ultimately accepted a percentage of what they were owed to get at least SOMETHING. In a recent blog post, "Contingent-fee experts?" at PointOfLaw.com, attorney Ted Frank explains why this might not be a good idea.

The key to avoiding getting into this situation is to work, as much as possible, against money already paid, whether called retainer or pre-payment for expected time in deposition or court. We have horror stories, such as an expert canceling appointments and flying across the country, whereupon the case settled and he was paid nothing, "because he didn't testify." So for an expert to be asked to reduce his already earned and owed fees does not, unfortunately, surprise us.

Don't let yourself get into a situation where you feel you have to discount your fees.

Latest News for Expert Witnesses

A recent post at the Drug and Device Law Blog analyzes in great detail a recent proposal by the American Law Institute for changing the requirements of expert witness testimony from the standard "reasonable degree of professional certainty" requirement currently in use by many states. The authors, Mark Herrmann and James Beck, strongly oppose this drafted 'restatement' and provide sound reasoning in this well-written post. Although initially addressing the medical expert, they ultimately include all other areas of expertise as well. Check it out - "ALI Draft...."

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I recently alerted readers to the postal increases going into effect on May 14. I had not yet read them in detail myself at that time. I was a bit taken aback when I read the article, "Are You Ready for the New Postal Regulations and a Whopping Increase in Costs?" by Ellen Freedman and comprehended the expensive implications of these changes. As she illustrates the problem:

"Currently our postal system operates on strictly a weight-based methodology. . . Effective May 14th, we will move to a shape-based pricing system. Under the new system, there will be three different pricing factors: size; thickness; and weight. There are even some rigidity factors which can influence cost, meaning that if you stuff the envelope so tightly it cannot b end, there is an additional cost."

Read this article, as you might need to change the terms of your engagement agreement based on the amount of mailing your practice does during the course of work.

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Last August, we were so touched by the kind words many of you sent on the loss of our friend and client, Tim Snoddy, in the Kentucky plane crash. His family has created a memorial site for him that beautifully describes what a special man he was and will continue to be in the hearts of those who were blessed to know him.

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Finally, I can't ignore what's in front of all of us at this moment. Please keep in mind and heart the victims, families and all others involved in this terrible event at Virginia Tech.

Listen and Hear - It Matters

A well-respected and admired local news anchor here in the Tampa area recently committed suicide. The coverage has been touching to say the least. But Steve Otto's column about this tragedy in the Tampa Tribune this morning contained some very wise words for all of us. He wrote:

"Sometimes I think we only let others speak in order to catch our own breath and get on with what we want to say when there is a pause.
It wouldn't hurt to actually listen to what people are saying and then think about what it is they said before continuing with whatever it was we were talking about."

I will be reminding myself of this in both my personal and business communications because I think it's an easy habit to fall into and we end up missing out in many ways.

Are You Missing Calls?

I received an email from a business associate this week with a proposal for me to consider. So I picked up the phone to call him. I got a busy signal. I figured it was a fluke and tried again the next morning. Still busy.

There is just no excuse in this day and age to ever encounter a busy signal when calling a business. At the very least you can get call-waiting and a voice mail system for about $10 a month. It's a cost of doing business - and who doesn't want more business?

Don't make it hard for potential clients to reach you; they won't waste time trying repeatedly. They will simply move on to the next name on their list.

Check out your phone system occasionally. Call and see how it is answered if you have a receptionist or what your voice mail message sounds like. How many rings before the phone is answered? Is the greeting (live or recorded) professional? Are there any background noises? Is there room in your system for the caller to leave a message? (Too often I hear "Mailbox is full"!)

Don't turn down business without even knowing about it.

News/Opinions about Expert Witnesses

In view of our recent conversations about the policing and regulating of expert witnesses by various groups and governments, here's a selection of recent news and commentaries:

A recent case in Miami highlights the dangers of exaggerating your credentials. In this case it resulted in criminal charges for the expert. Dr. Bernd Wollschlaeger of the Dale County Medical Association gives some tips for avoiding this situation and the article giving all the details.

The Legal Profession Blog points out what could be a very important case for experts and issues of liability in Suit Against Expert Witness Backfires

David P. Lowe, Milwaukee personal injury lawyer, discusses Intimidation of Expert Witnesses, commenting that, "Added to caps on damage awards, expert witness intimidation is yet another unfair obstacle placed in the path of innocent victims who seek to have their day in court in an effort to obtain compensation."

The Register Herald reports on "Group seeking 'code of ethics' for medical witnesses" with interesting statistics from a University of Virginia study, such as "72 percent [of doctors surveyed] had seen or heard testimony by a medical expert they felt was either in error or based on questionable science."

Robert Ambrogi offers his take on the now infamous Eli Lilly case in which documents were leaked by an expert in An Expert's Escapade.

And finally, I just found this human banter in our very formal Supreme Court of the United States rather unusual and sweet.

Regulations and Policing of Experts

I recently sent an email to our newsletter subscribers that went as follows:

Many of you have been sending in great information to help other experts. Knowing how we all suffer from information overload, I try to be very discerning about what I pass on and keep it to a minimum, sending only the most important or most helpful information.

The following is one I felt was important enough to distribute. I received this in response to a blog post about courts, state legislatures and professional associations 'policing' experts and their testimony.  I found this disturbing to say the least. Please read it and stay on top of the regulations affecting your region and area of expertise.

Warmest regards,

Meredith

-------

"Your blog post about the policing of experts is coincidentally timed. We were recently approached (as in – walked into our front office door and demanded loudly) by the Department of Agriculture and Consumer Affairs, and told that we are officially in violation of State Policy” and could be ordered to abandon our practice immediately.

The “investigator” was kind enough to leave a printed copy of the statute, as well as highlighting the relevant portion. It seems that ANY expert who is not professionally licensed by the DPR (lawyer/doctor/CPA/Insurance Agents) is suddenly required to maintain a Private Investigator’s license! This is based on the current Florida statute cited below.

According to the DACA’s interpretation of the statute, this would include firms such as mine, handwriting analysis experts, mechanics, and more. Our firm has been providing E-Discovery, Data Recovery and Computer Forensic Expertise since 1998.

Now, after almost NINE YEARS, and being on constant retainer for several State Attorneys, the Federal Government, and countless Court Appointments, we are told that we could potentially be put out of business. The largest concern is that to obtain a PI license, an individual must “apprentice” for two years first.

Fla. Stat. 493.6101
(http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubM
enu=1&App_mode=Display_Statute&Search_String=493.6101&URL=CH0493/Sec6101.HTM )

(17) "Private investigation" means the investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:

(a)  Crime or wrongs done or threatened against the United States or any state or territory of the United States, when operating under express written authority of the governmental official responsible for authorizing such investigation.

(b)  The identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

(C)  The credibility of witnesses or other persons.

(d)  The whereabouts of missing persons, owners of unclaimed property or escheated property, or heirs to estates.

(e)  The location or recovery of lost or stolen property.

(f)  The causes and origin of, or responsibility for, fires, libels, slanders, losses, accidents, damage, or injuries to real or personal property.

(g) The business of securing evidence to be used before investigating committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation therefor.

Interesting, huh? It would seem that taken broadly enough, this would apply to paralegals and secretarial staff as well. I’d be interested to see how many other experts may fall victim to this.

I would add that in addition to the 2 year apprenticeship (internship),there’s the insurance factor- as soon as you are a licensed PI you can no longer carry standard insurances (this according to our agent) because a PI carries a much higher liability.

[In my opinion] there is also an image factor involved. I know a lot of Law Enforcement and attorneys who despise PI’s because they have long been stereotyped as “gumshoes” and “hired guns”. And as you point out all the time (and we as experts well know) being a hired gun as an expert is suicide in court." - Expert reader

The response to this email was quick and informative. I have compiled some of the responses into a PDF, Regulations and Policing of Experts. Please let us know what's happening in your field and state.

New Resources for Expert Witnesses

Several companies that offer services to expert witnesses have recently made changes in their offerings or started new services and/or free resources. I have not investigated these in detail, but want to let you know what's new out there.

Many experts have told me how isolated they feel, with no one to talk to about situations that only expert consultants to the legal community face. Rominger Legal has launched Expert Forums, a free service where you can trade tips, discuss ideas, and get questions answered. (I would caution you to be careful what you say and remain anonymous if possible - everything you say is discoverable and lives forever on the Internet.)

Two new blogs for and about experts have debuted. The Expert Witness Blog by JurisPro supplements their existing free quarterly email newsletter for expert witnesses, The Pro.
SEAK, Inc., producers of the upcoming 16th Annual National Expert Witness Conference, have also launched a blog for expert witnesses.

Also just recently announced, Expert Pages has a new feature in their Control Panel to give experts ideas on how to expand their listing (apparently only available to those with an existing account). By clicking on "Topics of expertise" experts can view what are the most popular topics among other members in their field(s) of expertise (without listing any personal information of a specific member).

Although not new, there are two free monthly email newsletters (by separate companies) produced for both experts and attorneys that you might not be aware of. Archives of past newsletters can be for each at X-Pro News and BullsEye .

Let me know if these prove to be helpful or if you are aware of other resources for experts or new developments in the expert witness community.

Mailing to Attorneys

Have you sent out your quarterly "Howdy" mailing to your database of clients, prospects, and referral sources? Now is the time - the United States Post Office will be raising rates on May 14. First class will go to $ .41, postcards to $ .26 and Priority Mail $4.60. See other rate changes at http://www.usps.com

Professional Organizations Policing Expert Witnesses

2006 proved to be a pivotal year in the regulation of experts in our legal system. Formerly most professional groups that monitored the activities of expert witnesses were primarily in the medical field. As state legislation regarding tort reform moved forward however, other fields began to step, in engineering, IT, and other areas. In an interesting post on the Med Law Blog, Michael Cassidy poses the question "What is the Impact of Professional Society Expert Witness Standards?"

What standards are in store for your field? How do you feel about them?

Grievances Against Attorneys

Our discussions about experts getting paid for their work and expert witnesses being designated without their permission (or retention) prompted some expert consultants to throw their hands up about the lack of a regulating body that these attorneys could be reported to.

Their may be a glimmer of hope on the horizon for at least some experts. The New York Law Journal , in an article by Mark Hamblett, reports that the 2nd Circuit has formed a committee that "will accept referrals from the court on 'any accusation or evidence of misconduct' that occurs before the court and violates the rules of professional conduct or responsibility.'"

It remains to be seen whether this committee will only evaluate acts against clients or whether experts will be able to plead their case to the presiding judge for him or her to submit to the committee. But it's a start in the right direction.

My hope is that it leads to similar initiatives from the American Bar Association.

Check Your Computer for Problems with Time Change

As you may already know, the Energy Policy Act of 2005 changed the dates for Daylight Savings Time, which will happen this year on March 11 instead of in April. A hat tip to both Balanced Legal Solutions and Paul Wagner for alerting me to the unexpected problems this could cause users of common software programs like Outlook, TimeMatters, etc. as well as Windows Operating Systems.

Since this change extends the beginning of Daylight Saving Time by three weeks and the end by one week, if you rely on calendar features in any of your technology - computer, Blackberry, Palm, Trio, etc., - the features you rely on (such as prompts for appointments) will not be reliable. And, according to Paul, "...all Outlook Events will shift and span two days because events are associated with 24 specific hours rather than with an individual date."

You can find information on how to update some of these programs at http://support.microsoft.com/gp/cp_dst If you have other software that you think may be affected, contact the company ASAP and find out how to fix it.

Computer Crisis

I feel comfortable with technology in most respects; if I don't know how to do something, I'm comfortable poking about until I figure it out. Lesson learned - This is NOT always a good idea.

Yesterday morning, I begin my usual routine when my cat awakens me at 5:23 a.m. I stumble to the kitchen, feed the cat, start the coffee and open my laptop. Okaaayy. . . Close the laptop, open again. Nada. Push 'hibernate' button. Nope. Oh sh*&!

So, still in my jammies, teeth not brushed, I sit down at the desk and begin trying different tricks - unplugging and replugging, holding down certain keys, you name it. Finally, it reboots. Aaahh, okay, I can breathe now.

Go fix a cup of coffee while it revs up, turn on the lights, start making the bed . . . but wait, that doesn't look right. It's the start-up screen from when I first got the laptop. I register all over again, hoping and praying, but alas, when it finally comes up, NOTHING. All of my settings, documents, programs - they're ALL GONE!

I look at the clock -- it's 6:00 a.m. -- I don't think my tech guy would appreciate a call at this hour and I obviously can't email him. So I start to try other things, like PC Recovery. Supposedly this allows you to return to an earlier date on your computer and recapture everything from that time. I tried it; no luck.

At this point, I start making calls and the first thing I hear is "Don't do anything! Move away from the computer!"

To make a long story a little bit shorter, I had already made it harder to recover the data. After hours of sweating it out, a data recovery specialist came to the house and was able to recover MOST of my hard drive.

I share this not as a plea for sympathy, but as a lesson learned and a warning to others - When it comes to technology, if you don't know what caused the problem in the beginning, DON'T attempt to repair it yourself. I was lucky. (Sidenote: Backup your hard drive religiously!)

Should Experts Charge When Trial Date Changes?

An expert witness recently emailed me with the following question about billing:

"I have been an expert in many cases over the last 10 years, but it is usually a small portion of my annual revenue . . . In the last three years the opportunities have increased, [leading to a few basic questions].

Is it customary to bill clients for the days committed to for trial dates when the trial is subsequently cancelled, settled or postponed?

If the dates are locked on my calendar, I do not schedule my regular consulting business events, but at times they cancel only a few weeks or less before the scheduled trial. This causes issues with revenue of course as I typically schedule events in my business 6 to 8 weeks in advance.

I normally do get a retainer, so I do have the money, but have refunded clients in the past. What do the attorneys expect? What do other experts do? Do I disclose this policy at the time of engagement?"

My recommendation: Yes, you bill for that time and yes you disclose your policy in the engagement agreement you have your attorney-client sign prior to beginning work. You are giving up billable hours you cannot get back and should be compensated for that time. I would also urge you to set your retainer high enough to cover a half-day of testimony at a minimum.

Okay experts - what are your thoughts? How do you handle this situation? Have you received any backlash?

Potential Dangers of Expert Blogging

In a recent blog post of his own, UCLA law Professor Stephen Bainbridge illustrates some potential dangers for academics and participants in the legal community who blog. Although written in response to the firing of a blogger by the John Edwards campaign, Professor Bainbridge points out:

...you're bound to say something that offends somebody. And then it'll be out there forever. Judicial nomination? Political appointment? lateral hire at a "better" law school? Expert witness deposition? Congressional hearing? Forget about it.

I've commented before about the potential for blogs to be especially dangerous for expert witnesses as providing fodder for opposing counsel. If you choose to blog, or for that matter, post anything to the Internet, I remind you of Rosalie's advice to experts in The Expert Witness Marketing Book:

All of your writing and speaking is discovereable and can be cussed and discussed with you in deposition and in court. Be careful. Be consistent. Investigate, verify, and cross-examine your facts. Proofread, proofread, and proofread again.

Building a Successful Expert Witness Practice

If you subscribe to our newsletter Expert News, you have read our recommendations about the upcoming 16th Annual National Expert Witness Conference in Cape Cod this June. This multi-day conference by SEAK has sessions and preconferences for every type of expert, in every discipline, from novice to old-hand, consulting to testifying.

But there are so many sessions and preconferences to look at that I want to point out a special one. If you are mentoring someone new to expert witnessing or have a friend who is considering starting their own practice, I strongly recommend you steer them to this preconference - How to Start and Build a Successful Expert Witness Practice This intensive introductory workshop will be presented by Terrance Baker, MD, an extremely experienced expert witness and one of my favorite members of the SEAK faculty . At the SEAK conference I attended in Chicago a few years back, I was so impressed by his enthusiasm, knowledge and integrity.

So think about those in your circle who could use this information. Even if the whole conference would be too much for the beginning expert, recommend just this preconference workshop - it could make a big difference in their future success.

"Out of Office" Automatic Email Responses

In several instances recently, my emails to various experts have resulted in an automatic "Out of Office" reply email. This is a great function and allows users to offer other methods of contact if necessary or informs others of when the intended receiver will return.

The problem is this: I emailed these individuals in the first week of February. Their "Out of Office" reply messages ranged from "I will be out of the office from January 12 to January 25" to the worst "I am out of the country right now and will return December 26"!

Reminder: If you set up an "Out of Office" reply, don't forget to disable it upon your return.

You Never Know Who You'll Meet

I apologize for the long silence - I took a real vacation! I've been on a cruise for the last week with my brother and sister-in-law. It was a bit stormy, but wonderful nonetheless.

Of course a cruise is THE time to let your hair down, relax, party : ), and forget about everyday life. Having said that, I must admit that I was reminded of the old maxim - It's a small world. As tends to happen in the normal course of conversation, those of us seated at the same dining table began discussing our professions. I had (thank goodness) practiced what I preach and placed several business cards in my evening clutch. I handed them ALL out! (Fortunately, I had several more in my laptop case in my cabin for the rest of the trip!)

I did not 'do' business or anything of the sort -- I truly took a vacation. However, now that I'm back in the swing of things, I will be following up on those connections. Moral of the story: Always carry your business cards - you never know who you will meet.

Expert Witness News & Resources

Here is a brief compilation of a few of the most recent (out of the many I go through daily) articles, tips and resources for expert consultants:

* Another reminder to adhere to the accepted standards and methodology of your particular discipline in this article, "Expert Grilled on Methodology"

* 'Be prepared for questions (fair or not) regardiing your qualifications,' would surely be the recommendation of the expert witness discussed in this article from The Miami Herald "Heart Surgeon Faces Criminal Charges"

* This was interesting to me because an expert's duties often include the examination and analysis of opposing experts' testimony, but this time, as reported by Computer Businesss Review Online, it could ruin the case "Motorala Faces Heavy Legal Fine"

* A head's up on preparing expense reports this year - The IRS, as of January 1, 2007, raised the per mile deductible auto expens from 44.5 to 48.5 cents per mile for business miles. The medical and moving rate is now 20 cents per mile.

* Another possible resource (I have no personal experience with these services) for collecting fees from attorneys - Dun & Bradstreet's small business division offers several tools to collect on delinquent accounts.

Attorney to Attorney Advice Helpful to Expert Witnesses

A blog post by Rick Kuykendall at the Trial Lawyer Resource Center listed these five questions as the basics for conducting an expert deposition:

1. Who engaged you in this case?

2. What did they ask you to do?

3. What did you do?

4. What conclusions, opinions did you reach and what do you intend to testify to at trial?

5. Were there any other tests, analysis, or other things you could have done or would have liked to have done?

At a minimum, be prepared to answer these questions.

One Expert's Method for Handling a Billing Dispute

Attorneys and experts disagree on payment - nothing new there. But this expert refuses to take it lying down in a battle with the Department of Health and Human Services in Arkansas. His bill was for $165,000 originally, and more than $200,000 after late fees and charges for the additional documentation they requested were added; the state claims that $60,000 is more than fair.

As Charlotte Tubbs reported in the Arkansas Democrat Gazette article "Agency, witness tangling over pay":

"Quietly, a two-year battle brewed behind the high-profile court case between the department and the witness it hired, George Rekers. The dispute involved department requests for billing explanations, Rekers' accusations that the department's attorney behaved unethically and department accusations that Rekers conducted unnecessary research."

The whole article is quite interesting, with other unrelated bits of information such as how that department chooses experts for litigation:

"Professional and academic requirements are case-dependent. 'There are times when academic skills are important and sometimes experience is more important,' [Health and Human Services Department spokesman Julie Munsell] said."

I wonder how this will affect the expert's reputation with other attorneys? With the court system in general? If he gets paid, will it be worth it?

Research Yourself Online

Attorneys occasionally write articles advising other attorneys on various methods and sources for finding or researching experts. I am vigilant about reading these articles, often written from a certain sector of law such as IP or medical malpractice, because every so often they list a tip that can help experts in that field reach their prospects.

Carole Levitt and Mark Rosch of Internet for Lawyers, recently wrote such an article, "Internet Research Digs up Private Matters", but with a slightly different slant. They look at research from the perspective of 'what if convential methods of background research were unavailable' --

"...lawyers will have to conduct their investigative research "outside the box" of public records -- and this may be easier than you think, because people increasingly post sensitive, personally identifiable information to the Internet via blogs, Web sites, podcasts, group discussions and social network sites."

When I researched a few names using ideas from this article, I frankly found it kind of scary in a 'big-brother' sort of way.

In addition to looking yourself up through the methods in the article, I recommend you put your name into Google (in quotes "John Smith") and other search engines every month or so and see what comes up. You might be surprised.

Email Is Not Duct Tape

Email is wonderful. I know, I know, SPAM is overwhelming, we receive the same 'funnies' five times in one day (and then again several months later from those who missed it the first time), and so on. But overall, I am grateful for the vast communication channels it has made available to all people. Free, almost instantaneous communication with anyone around the world has been an amazing advance in my lifetime.

As with all forms of communication however, it has its place. Just as one shouldn't deliver bad news by singing telegram, the efficiency of email does not excuse its use in place of the appropriate form of communication.

Exspecially if the issue is important, a phone call is often warranted. With SPAM filters, server hiccups, and computer gremlins, you have no guarantee that your email was received. And not everyone appreciates the 'notify sender when received' function.

If the issue is emotional or could in any way be misinterpreted, a face-to-face meeting or phone call is the safer option.

In light of the new Federal Rules of Evidence and heightened awareness of e-discovery, your attorney-client may appreciate your thoughtfulness in discussing case-related matters verbally rather than putting them in an email that may later prove to be discoverable. And email never dies -- it lives forever on the receiver's computer, your ISP's server, webmail, a PDA, etc.

Finally, because its use is so prevalent, when you take the time to make a phone call, pen a hand-written note or - gasp! - see someone in person, it truly stands out for that individual. You have made your contact person feel important and as a result, made yourself memorable in his or her mind.

Without a doubt, I will continue to take advantage of this wonderful tool and hope you do as well. But maybe we should ask ourselves from time to time, "Is this the best way to send this message?"