Different Fees for Different Clients?

An expert witness recently emailed me this question: "Does it affect an expert's credibility to use different fee schedules with different clients?"

My immediate response was that all information is discoverable these days - anything you make public on the Internet, print and mail out (even to individuals), say, do, etc., - can and will be 'cussed and discussed' as my mother says, and used against you. I can't imagine a good answer when asked about it in deposition or court by opposing counsel.

What makes this particular question even more dangerous is that the expert was charging plaintiff attorneys at a different rate from defense attorneys. I actually cringed when I read his email.

Am I way off-base? Do you think this expert could be unwittingly inviting trouble or am I over-reacting?

This N That

Here's a collection of some articles and resources I think you might find helpful:

"There is both an art and science to writing an expert report..." In the Fall 2007 issue of The Legal Write, Micheal J. Molder, JD, CPA, CFE and David H. Glusman, CPA, DABFA, CFS, Cr.FA go on in great detail about expert reports, covering issues such as admissibility, the drafting process, Federal Rules of Evidence, objectivity, and credibility. A good read.

I've just recently discovered a service called Jott. In our information overloaded, multi-tasking world, this is a great way to avoid letting things slip through the cracks. Have you ever been driving down the road and had a brilliant idea or remembered someone you were supposed to contact? With Jott, you call an 800 number, talk up to 30 seconds, and the recognition software transcribes your message and sends you an email. You can also add other contacts and have Jott send them an email. It is free and there is no software to download.

Are there people you call frequently that have a long voicemail greeting? You've heard it over and over yet continue to be subjected to the entire message every time you call in order to leave a message? On many voicemail services, you can hit either 7 or # to skip that long greeting, saving you time, aggravation and possibly cell phone minutes!

Have you read any good articles or discovered some practice management or time-saving tricks lately?

Directory Listing Tip for Expert Witnesses

Rosalie offers this tip to experts about advertising or listing in directories:

In most directories, both print and Internet, you have a limited number of indexes to select. One of the services we perform for our consulting clients is to edit and rewrite if necessary their directory listings, check their index selections for greatest effectiveness, and expand their keyword list when that feature is available.

One situation I see when doing this is that sometimes the expert has used some of his/her limited number of indexes in selecting useless terms such as "expert witness," "litigation support," "standard of care," and "policy and procedures." If you are listed in an expert witness directory, you are an expert witness (regardless of the fact that you consult a lot more than you 'witness'), engage in litigation support, and opine about the standard of care and/or policy and procedures in your profession/industry.

An attorney client prospect is not going to search that directory for that term, as that is a "given." He/she is going to search under the terms applicable to your field or discipline. Don't waste your indexes. And when you see these inane indexes, ask the directory to delete them. I do. I used to manage directories so my opinion has some weight with most of them, but yours does too -- you're a paying customer!

Dealing With the Opposing Expert Witness

We recently received an email from a reader of our newsletter, Expert News, about a problem the expert experienced with an opposing expert. With permission, I am reprinting it below and hope that you may have some advice for this expert witness.

There may be nothing one can do when an opposing expert egregiously inflates or fabricates their credentials and one's own client attorney fails to use evidence to prove it, but what about when that expert also tells lies about you?

I've had this experience in two recent cases, where the other expert stated on the record to both juries that I have a vendetta against her and that I had contacted "literally hundreds of people" and "fabricated stories about her," neither of which is true.

The truth is, several years ago at the request of my client attorney I checked on some items that appeared on this other expert's CV. I contacted about a dozen (not hundreds!) of the references on the CV. At no time did I fabricate anything, but simply asked whether they could verify the references, including claims of advanced degrees from a major university and claims to train government agencies in our particular field. For every item I obtained a letter from the reference stating that the claim was incorrect or untrue. In addition, I later obtained a transcript of this person's voir dire in the case I was involved in, where some of these claims were made.

Last fall, I once again opposed this person. I supplied my client attorney with the letters and transcript and he used the evidence. Our client won the case. The attorney talked about filing perjury charges against the expert, but that never happened.

In a more recent case opposing the same expert, she made some of the same claims, but this attorney client did not use the information he had to refute what she said, leaving the jury with the impression that she did indeed have the stellar background that she claimed. In addition, the expert told the same tale about me supposedly having a vendetta and that I had contacted hundreds of clients and fabricated stories about her. My client attorney allowed those statements to stand without questioning them. I thought he was saving the questions for my testimony.

However, when I took the stand, not only did my client attorney not give me any opportunity to respond to those false statement about me (which did make it look as though I had a vendetta), he barely allowed me to state my own credentials, and my exhibits were not allowed in--I still don't know why. So I was forced to explain my opinion without the important demonstrative exhibits that I had spent a lot of time preparing. Our client lost this case.

My problem is not that our client lost, but that he lost based on misrepresentations. When an expert inflates their credentials, there is no longer a level playing field. When the jury hears an expert say all these wonderful things that they have supposedly done, it gives their testimony greater weight. Untruths about the opposing expert make it far worse.

This person's untrue statements about me have affected my reputation and credibility. How do I know? Because the jury foreman stated that the jury found the other expert "more credible." Given the facts as stated above, I can understand why they would get this impression.

So, I wondered whether this type of situation is a common problem and what other experts do about it.

Please share any words of wisdom or similar experiences in the comments. (You can post anonymously).

Are You Really an "Expert Witness"?

Allan Griff wrote an article for the BullsEye Newsletter at IMS Expert Services called "Why Do They Call Us Witnesses?" The opening sentence explains - "The words expert and witness are often joined together, as if the purpose of the expert is to be a witness at a trial. But most cases are settled without trial, so why do they call us witnesses?" He continues with sections such as "All Attorneys Are Not Equal" and "All Experts Are Not Equal Either." This is part one of a two part series, so you might check back for the second half.