Expert Witness Marketing

Initial Inquiry Call from Attorney

2011-07-04T08:50:00.010-05:00

Following Rosalie's June newsletter article, "How Much to Say in the Initial Inquiry Call," several experts sent me their own "initial call" procedures. Here is one so clear and comprehensive, I wanted to share it:

When a new attorney calls me and tells me general information about a case he has, I listen politely, I take notes to protect myself, and then I offer to send the attorney a copy of my CV, my Rule 26 disclosure, and a standard copy of my retainer agreement. Since the attorney calling always wants to know what my rates are, I simply tell them I will forward the retainer agreement, and all costs are fully disclosed. I then email all the documents to the "new" attorney.

My retainer agreement not only lists the fees and scope of my work, but I also have a clause (in bold) that expressly forbids the attorney from disclosing me as an expert witness if the attorney has not retained me. This happened many times in my early career, and that is why I put it into my retainer agreement. The clause also states I will take action against the attorney if I am listed without being retained. This clause has stopped attorneys from listing me as expert without retaining me. In addition, I have proof that I sent them the retainer agreement, thus I know my clause has been read. [editor's note: see other experts' experiences on being designated without permission in this past discussion.]

I never, never offer an opinion of a case based on information given to me by the attorney. On the initial call, when asked my charges, and if I think I can help them, I simply reply that I cannot determine the cost until I have seen the documentation, and that I do not know what my final opinion will be until I have reviewed all documents and have performed my analysis. I do tell them I've done this for many years and I work quickly. By seeing my Rule 26, they can view the types of cases I have testified, and who the hiring attorney was. That lends to credibility.

Over the years, I have found the really smart, professional attorneys will not try to solicit an opinion from an expert unless the expert has done their own investigation. And since my retainer agreement loooks just like an attorney's retainer agreement, a good attorney will respect that the expert will not work for free. I have found that the more professional I am, the more I am respected. I know that is a hard act to balance when you are new and trying to drum up business, but it is imperative, in my opinion, to start out highly professional, with stated fees and conditions prior to offering an opinion and to stay that way throughout your career. There will always be attorneys out there that are trying to get something for nothing. That is not the type of attorney you want to work with anyway.

Wise words from a seasoned expert.

Expert Witness Income - Nobody's Business

2011-02-22T13:42:00.002-05:00

How much do you make testifying as an expert witness? The Appellate Division of the Superior Court of New Jersey has ruled that you should not be required to share that information. Attorney John Day has all the details.
(Hat tip to Toby Edwards at Round Table Group)

Tips for Testifying

2011-02-08T09:35:00.006-05:00

Attorney Elliott Wilcox has some tips for expert witnesses on testifying. Having served as the lead trial lawyer in nearly 2oo jury trials and numerous non-jury trials, he might know a little about this . Mr. Wilcox cautions that this is just a quick primer:

Don't get rushed. Get into the pattern of "Question - Pause - Answer." By ensuring that you pause after each question (regardless of the question's difficulty) you'll avoid getting pushed into rapidly answering the defense attorney's questions.

Talk to individual jurors, not "the jury." Make eye contact with individuals. Think "conversation," not "soliloquy."

Remember that you're always on stage. Maintain a serious composure before and after you testify. The jurors might see you as you drive into the courthouse, in the hallways as you wait to testify, or after you've finished testifying.

If you make a mistake, correct it immediately. You've heard that "it's not the crime, it's the coverup." Jurors will forgive you for making a mistake -- they won't forgive you for covering it up.

Don't look to [your attorney-client] for answers. [He/she] can't help, and it looks like you can't take care of yourself.

Don't be a jerk. Unfortunately, it needs to be said. You can have all the brains in the world, but if you're a jerk, the jurors won't want to listen to you.

New Rules Affecting Experts Begin December 1st

2010-11-16T13:46:00.004-05:00

Attorney Robert Ambrogi discusses the changes to Rule 26 of the Federal Rules of Civil Procedure that will protect some communications between experts and their attorney-clients, such as draft expert reports. Read the entire article in the IMS newsletter.

Manners Matter for Expert Witnesses

2010-08-12T15:11:00.007-05:00

As an expert witness, your demeanor can be critical to how triers of fact view you, your report, and your testimony. Respect, politeness and composure can make a big difference in how the jury sees you. In "Effective Expert Preparation and Presentation," in The Advocate Magazine, May 2010, the Honorable Peter J. Polos (Ret.) writes that in addition to "Yes, sir/ma'am" and "Your Honor" that:

Experts should not let their tempers show no matter how bad the behavior of the questioning attorney. If the expert maintains his or her composure and the cross-examining attorney does not, it can only negatively impact the other side. Some of the the worst expert testimony I saw was due to argumentative or defensive testimony by the expert on cross-examination.

I will add from a marketing perpective that word gets around among attorneys. If you are known as composed and well-mannered, you are more likely to be referred and recommended to other attorneys.

(Unfortunately, this article is not available online but I highly recommend you read the entire article if possible. Judge Polos has valuable advice on several areas of expert witnessing)

Expert Witnesses from a Juror's Perspective

2010-07-28T12:16:00.006-05:00

I frequently read advice and reactions from attorneys and judges regarding expert witnesses. It is rare, however, to hear it from a juror's perspective. Here are one juror's comments after a recent seven day trial:

Expert Witness for Plaintiff [EWP] was not board certified and claimed the reason he wasn't was that it was too expensive.

EWP was flown into [city X] from [several states away]. This was suspect , as we do have a leading medical center here; surely they could have found an ontological hematologist from [city X]. Would have set better with [city X] jury for sure!

EWP' s attitude -- I'm right and everyone else is wrong -- was simply not digestible by this jury. It just didn't wash. There not standard of protocol for this treatment, so there can be no absolutes.

EWP did not address the jury, but plaintiff's lawyer.

EWP was not cool or calm.

The Expert Witness for the Defense [EWD] was excellent. Spoke directly to the jury, was board certified...EWD was careful to state, that for this patient, this situation, the doctor made right decisions. Plaintiff's lawyer was able to get EWD to agree to many things, but EWD kept clarifying with, "I agree to this, but not for this patient in this situation."

Five Important Expert Witness Rulings

2010-07-27T09:59:00.003-05:00

Whew - it's been a big year for legal decisions involving expert witnesses. Attorney Robert Ambrogi at IMS Expert Services reports on the Top Five Expert Rulings of 2010 (so far). Take a look - these rulings could affect you.

Keep in Contact with Attorneys

2010-06-16T08:29:00.005-05:00

We frequently talk about sending out professional announcements and the like as a way of staying on the radar of your prospects. I recently heard from two experts who are being innovative in this regard. One expert witness recommends referring a potential client to an attorney on your list and letting him or her know you are doing so by asking them if it would be okay. (True networking is about providing value...)

Another expert keeps track of law firms' charitable events and functions such as golf tournaments and either participates of just attends. The key to this type of marketing is not to go and hand out business cards, but rather to meet people and form relationships. And remember, listening actually creates a better impression than talking sometimes.

Hostile Opposing Counsel - Part 2

2010-05-12T15:03:00.004-05:00

Continuing the input from expert witnesses on dealing with hostile opposing counsel in deposition:

I have been doing expert witness work for 25 years. Attorneys basically have two tactics. They can either attack your opinions or attack you personally. If the whole deposition is about attacking you personally, you know you have won! If you the attorney could attack your objective opinions, he would certainly do so. If he refrains from attacking your objective opinions, he knows you are completely accurate. Therefore, since he can't directly dispute your opinions, he can only attempt to discredit you and therefore, by implication, your opinions.

If the attorney spends most of the deposition attacking how much money you make as an expert witness or how you testify more for one side or the other, or is extremely obnoxious and aggressive, just remain cool and calm. You have already won the case and that attorney knows it all too well. His only hope is to get you crack and say or do something stupid. Like you said, these tactics are primarily in depositions where they can't be "seen". These kinds of tactics are rarely used in front of a jury because the jury would see them for what they are. In addition, while you can't always depend on it, judges may limit some of these theatrics as your client attorney may object to the witness being abused.
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Take a look at Federal Rules of Civil Procedure, Rule (d)(3)(A) regarding Motion to
Terminate or Limit deposition by witness.
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This all brings to mind a deposition I had in which the opposing counsel made a very big deal of the fact I had not brought exactly some financial data on my expert practice he had requested (I had brought something equivalent and in fact more responsive to his concerns). He then proceeded to politely but persistently ask me the same question over and over, in different ways but always the same question. My answer was critical to his case, and I answered politely but firmly each time. He never got what he wanted, and politely made sure I knew he was not happy about this. I thought he was a bit of a jerk.

Several months later he called me and asked me to work with him on a case. He introduced me to his partners as an expert who "is really good". It was only then that I realized he had been "trying me on for size" in that first deposition. Since that time he and his partners have become regular clients. I have come to understand he is in fact a pretty nice guy, and a well respected attorney. Learning how lawyers play the game is one of the many things I enjoy about my expert practice.
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Ask him why he is high-fiving and being insulting off camera (or whatever) and get it in the record.

Hostile Opposing Counsel - Part 1

2010-05-10T09:27:00.009-05:00

In our newsletter, we've been discussing how expert witnesses can handle hostile opposing counsel during depositions. The stories and advice keep coming and are too good not to share. So from the experts who've been there:

I once had an oppposing attorney scream at me 2 inches from my face and spittle peppered my head. I then said "let the record show the opposing attorney," and then described his antics. He was a perfect gentleman for the rest of the deposition.
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I think the best defense with these types of attorneys is to maintain one's composure.
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I think if opposing counsel gets too far out of line, your attorney should step in and say something. That's happened to me only once; my attorney "suggested" that I be treated as a professional or the deposition would come to an end, or he would call the judge. Opposing counsel apologized and backed off.
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Here are some strategies that work well for me. I request that the attorney either repeat a question and ask for clarification (I totally understand the question) which slows the process and helps keep the opposing counseling in check and off point. Another option for me is to start speaking slower, take extra pauses and lower my speaking voice or count to five before answering a question -- sometimes silence is a great leveler. All of this is done as I smile and answer the question in my own way and in my own time. At other times I state that I need to take a break.
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"Why are you harrassing me?" in order to get this into the record. Then, the attorney denies this, but he changes his manner and it puts him off his plan of attack.

Check back for part 2.

Expert Witness Reports - Details Matter

2010-01-22T13:14:00.004-05:00

A few months ago we discussed expert reports and their importance as a marketing tool (an available example of your expertise and work). I'm sharing one of the responses we received:

Don't forget to mention spelling.

I saw an attorney totally destroy an expert over a single misspelled word!
Actually, it was beautiful to watch - since it wasn't me. This attorney knew
damn well what the misspelled word was. Instead he asked me, what "XXX" meant.
As I started to explain, the other expert kept interrupting to correct the
spelling and this attorney kept apologizing to me for the interruption. By the
time that attorney got through, the poor expert had been censured by the judge,
after admitting his report "was mistaken with error."

Details matter!

Publicity, Practice Management, and More

2009-11-06T10:19:00.006-05:00

I'm finally catching up on my reading and found some gems:

Being mentioned or quoted by the media can be a very effective (and inexpensive) marketing tool and who wouldn't want to be mentioned in the New York Times? See some original tips to accomplish that in this post at Nolo's Legal Marketing Blawg.

Worried about the economy's effect on expert witnesses? Head over to the Expert Witness Blog to read Rick Van Bruggen's opinion on why experts are "recession proof". While you're there - if you are based in the New York area, check out the schedule for the Gotham City Expert Witness Group.

What will happen to your practice if you have surgery? Dr. Jean Murray has some good tips for "Keeping Your Business Going After Surgery" at the Small Business Boomers blog.

And lastly, in keeping with my effort to stay on top of my "to-read" list, Scott Kirsner of the Boston Globe wrote an article on "Timely Tips to Empty Your Inbox".

Expert Witness Retainers

2009-10-23T08:12:00.005-05:00

An expert emailed me a question about requiring fees up-front, scheduling and travel. I thought you might find our exchange interesting.

Expert's Question:

I charge a non-refundable deposit when an attorney gives me a trial date and asks me to commit to this. (I don't charge them until they ask me to make travel plans). I have been charging a full day fee since I often have to re-arrange my clinical schedule and even give up shifts to travel.

I recently had a trial that I was committed to go to be postponed and I hadn't received the deposit yet (I had worked with this firm before and trusted them).

How do other experts charge for this? Do most charge a fee before committing to travel? Non-refundable? How much?

I am wondering now if I should charge a scheduling fee, perhaps 50% of the required amount for a trial that is non-refundable. I want to be fair to the attorney since they can't control when a trial is postponed.

My Reply:

You should NOT empty your waiting room, re-arrange appointments, etc., to schedule deposition or courtroom time UNTIL you receive a check for the full,
estimated time. Then, if they postpone or cancel, you can refund money on a sliding scale (see Fee Schedule and related info in The Expert Witnessing Marketing Book) based on how easy/difficult it is and based on the date of postponement/cancellation, how easy is it is for you to restore your local work schedule.

I hear this over and over, and experts should not experience loss of income due to dates being moved by the courts and the attorneys.

What You Say and Do Will....

2009-09-16T13:47:00.004-05:00

.... come back to haunt you. Attorney Robert Ambrogi has a great article "When What Happens Online Ends Up In Court" about ten cases in which various players in the courtroom - judges, lawyers, witnesses - found themselves in trouble due to their online activity. Some are pretty funny, but all of it serves as a reminder to be careful.

This Takes the Cake!

2009-09-16T12:05:00.005-05:00

I've mentioned before about having contact information on promotional materials and easy to find on your websites. But now I must add -- include contact information in your directory listings and advertising! In glancing through a print directory of expert witnesses I came across a full page listing with lots of impressive information and NO contact information. No phone number, address, email address or website - NOTHING. I'm just dumbfounded.

Questions about Expert Witness Income

2009-09-09T10:34:00.005-05:00

Have you ever been questioned by an attorney about your income as an expert witness? We recently emailed our newsletter subscribers an article about this. It struck a nerve and I have compiled the responses, which you can read here.

The most common advice seems to be to answer in percentages. How do you respond?

Do you commonly hear this question in deposition and/or trial?

Be Careful with Your Expert Witness Website

2009-08-21T13:03:00.010-05:00

This is a caution about building and maintaining your expert witness website. As you know, everything you do, say, and write can and will be cussed and discussed and used against you. The added danger of the Internet as opposed to other venues is that once it's there, it's always there and it doesn't matter if you change it the very next day. Check out the Internet Archive and their Wayback Machine. Just type in your website address and you will see every incarnation of every page on your site since its inception and -- so can anyone else!

So what does this mean to you? If you are just building a website, don't just slap something up to have a website. If you have a website, be vigilant about who can add pages, update pages, etc., and proofread everything before putting it out there. Some things you just can't take back.

Expert Witness Deposition Video

2009-08-01T14:22:00.004-05:00

Being from Texas, we are familiar with Frontier Justice. We just don't often expect to see it in current times, much less in an expert witness deposition.

Check out this excerpt of a deposition of an expert witness by the famous (infamous?) Houston attorney, Joe Jamail.

Mid-Year Review for Expert Witnesses

2009-07-24T13:41:00.005-05:00

This is two-pronged post. First, a gentle reminder about staying on top of your marketing. Now is a good time to check your directory listings and advertising to make sure a) all your contact information is still current and listed correctly and b) that your description/key words accurately describe your practice. It's also a good time to analyze what's providing the best results.

On another front, attorney Robert Ambrogi recently wrote about 2009's Top Five Expert Rulings to date that includes decisions about improper exclusion and the right to confront an expert - decisions that could affect you.

Expert Witnesses and Retirement

2009-07-06T10:50:00.006-05:00

Have you planned for retirement? Will you simply close up shop and end your practice? Are you considering selling your expert witness practice? Many experts have contemplated this issue. And it matters, even it seems years away, because your end goals could affect the practice management and marketing decisions you make today and in the years to come.

Here is what one expert emailed me on the subject:

"Question: In a year or two, I would like to retire but I don't know what to do about my clients and practice. I have been an expert witness for about 20 years and have built a good nationwide practice with a number of law firms that use my services over and over along with a constant flow of new clients. My web site has an "employment" section that implies a qualified associate has the potential of acquiring the practice in addition to making a respectable income. The employment section has been on the web site for 6 or 8 months but so far there has not been any interest."

What are your thoughts? I would love to hear your experiences and plans. Please leave your thoughts in the comments or email me at meredith@expertcommunications.com. Also contact me if you would be interested in writing a guest article on this topic or a related one for our newsletter, Expert News.

Help This Expert: Working with a Disability

2009-06-29T13:35:00.006-05:00

I recently received a question from an expert about how to continue an expert witness practice when the expert has a disabling health condition. Here's the email I received:

"A colleague of mine is a self-employed expert witness. He works out of a home office in a fairly rural town, and is occasionally called upon to travel to a client's offices or meet with attorneys. Last winter he suffered a stroke, and now finds that he cannot leave his home without assistance, and some of the tasks associated with his work are much more time consuming than before. This has raised some significant challenges as his recovery progresses, and I suspect other expert witnesses have already navigated these decisions.

At what point should one disclose a handicap to potential clients? Should one bill differently for tasks that take longer than before? How can one minimize having to work outside the home? Should all self-employed people carry long-term disability insurance? What accomodations are reasonable for a handicapped person to expect when he must travel to a deposition? There are many other questions surrounding this issue, but thus far I have more questions than answers."

I suspect some of you have faced this issue already and we should probably all consider what we would do. Please give any words of wisdom or resources you know of to help this expert.

Sotomayor and Expert Witnesses

2009-06-10T12:18:00.006-05:00

As one who majored in Government and Politics, I follow the Supreme Court rather closely. The change in make-up I see coming in the next four, eight, twelve years, starting with Sotomayor, fascinates me. Attorney Roger Ambrogi's article on Sonia Sotomayor's Top 5 Rulings on Experts provides a look into how her trial court experience affected her appellate opinions and maybe what we can expect if she is confirmed to the Supreme Court.

Going On Vacation?

2009-05-30T10:00:00.005-05:00

Vacation season is here. Many of you will be notify callers of your absence through your voice mail message. Jim Calloway's recent post about the message you compose offers sound advice that applies to your "out-of-office" automatic email response as well. It had never occured to me that leaving the beginning date of your leave could be detrimental but his reasoning is sound. Check it out. (Although his advice is written for attorneys, it applies to expert witnesses as well).

Also, a reminder from me to make sure you change your message as soon as you return and turn off your automatic email reply.

Tracking (and Billing) Time

2009-05-14T14:33:00.004-05:00

I've been reading numerous articles and posts lately about how much billable time is not billed. Expert consultants that bill by the hour (which should be most, since billing based on outcome is unethical!) are definitely at risk. In our fast-paced world of constant email, phone calls and other interruptions, it is easy to neglect writing down that fifteen minutes working on X before the next interruption. Later, you may not be sure or may think "it wasn't enough to worry about" and so on. But that time adds up and let's face it, your time is money.

I know there are many time-tracking tools, both online and in billing software. Are you using any? What would you recommend to other experts?

Recommending Other Expert Witnesses

2009-04-22T14:18:00.009-05:00

We've had an on-going discussion with our newsletter readers about getting payment from insurance companies. Within that discussion, I received the following email with an interesting story pertinent to marketing an expert witness practice:

I provide expert witness services in the insurance and reinsurance industries both in court and in arbitrations. Here is a recent experience. I was called by "Joe", a client for whom I have been retained a few times. He needed an expert in marine cargo insurance. I declined, as this is not an area of my expertise. Joe asked if I knew of anyone who could qualify; I told him I would help if possible. I then called "Jim", a fellow expert/friend, passing along the request from Joe. Jim said he didn't qualify, but he was in turn trying to assist an attorney in locating an expert in a certain type of property insurance, and asked if I knew of anyone with that background. I said "yes-me"; Jim said he would pass it along. I then called "Dick" another expert/friend about the marine cargo. He was qualified and was grateful for the lead. I asked him to call Joe. Right after that, an attorney called, said Jim had recommended me and wanted to discuss the engagement.

Here is the outcome of these events:
-- I got the property insurance engagement from the attorney Jim was trying to help. It was a very lucrative and challenging assignment.
-- The law firm that engaged me is a major player in this arena; now they know me well, and a name partner told me "we'll work together again."
-- After testifying at the arbitration Hearing, I received calls for expert service that I traced back to recommendations from the chairman of the arbitration panel.
-- Dick was retained by Joe for the marine cargo case, and was grateful for my recommendation-this will reinforce our assisting one another in cases that we cannot take ourselves.
-- Joe called thanking me for recommending Dick-this keeps me on Joe's radar screen as well.

All of this happened as a result of me receiving a call for a case that I couldn't take. Instead of stopping at "no thanks", my thought was to help some friends and keep my name in front of them. I view every call as a possible opportunity. When approached on something outside of my expertise, I will tell the attorney "I understand that subject and have some familiarity with it. However, actual job responsibilities with the specific subject have not been sufficient to prevent me from being vulnerable under cross-examination, and I would not do anything that might detract from the merits of your case. Therefore, I must decline." Almost always, they express gratitude for expressing it as a respect for their client and the client's interest. I can then often nudge the conversation to my areas of expertise, get in a brief pitch, and follow up with a CV. Again, it's a way to create a potential opportunity out of a declination.

Sounds like a win-win situation to me. Do you see any potential pitfalls?

Keep Your Practice Busy

2009-03-26T08:38:00.009-05:00

If your expert witness practice is suffering in this economy, asking yourself a few questions might spark some new ideas to get more business:

Is there an industry going through a lot of litigation right now that you could target?

Is there an additional service you could provide, such as helping attorneys when conducting depositions of other experts (what questions to ask, etc.), or reviewing files?

Do your current and past clients know all of the services you can provide?

Can prospects easily find out what services you provide and the industries and types of cases you handle?

Could you expand the geographic area in which you currently practice?

Are there issues in the news that you could address either in a press release or by contacting the reporter directly to offer expert commentary?

What steps have you taken in the past to get business that worked? Are you still using those methods?

Thoughtleading for Expert Witnesses

2009-01-31T13:47:00.010-05:00

"Become the Go-To Authority" caught my eye, so I placed the book on my Amazon list and finally got around to reading it a few months later. Ken Lizotte's book, The Expert's Edge, is about how to become a "thoughtleader" and authority in your field. Although not all of it is applicable to expert witnesses because of the unique nature of the legal field (not being an advocate, possible contradictions in opinions, etc.), much of his advice is at least thought-provoking.

The book centers around the five pillars of thoughtleading:

Pillar 1: Publishing your ideas
Pillar 2: Speaking before groups
Pillar 3: Keeping your edge with fresh thinking
Pillar 4: Creatively leveraging the Internet
Pillar 5: Making vigorous use of the media

A quick, worthwhile read.

Your Expert Witness Practice & The Unexpected

2009-01-27T13:32:00.004-05:00

What happens after the unexpected? I know I harp on preparing for disaster, the future, and the unexpected, but I was recently reminded of another factor in the equation.

The wife of an expert witness who died unexpectedly contacted me last week. She was trying to close his practice in the most responsible way possible - contacting clients, trying to refer them to other experts, returning files to attorneys, etc. It was overwhelming, especially trying to collect unpaid fees and expenses. I helped her as much as I could, but it served as a reminder that we should think about who will handle what we leave behind and how we can make it easier on them.

If you are uncomfortable discussing such things, write some instructions to be available after the "unexpected". Perhaps even try to divide duties among more than one person. Please give it some thought.

Expert Witness Practice a Little Quiet?

2009-01-21T14:18:00.007-05:00

If your practice is less busy than you would like right now, make use of the extra time by spiffing up your database of contacts. Enter those business cards you collected at your last association meeting. Scroll through and see if a referral source deserves a thank you. Are there lists of prospects you could buy or compile for your database? As Rosalie Hamilton says in The Expert Witness Marketing Book:

"Communication is the lifeblood of promotion. A well-built, well-maintained database is one of your most valuable businss assets. Possibly you could even sell the information to a younger expert witness in your field when you retire. For now, your database is your field of prospects. The better you create and cultivate that field, the greater will be the crop you harvest. "

Marketing Resolutions

2009-01-06T07:58:00.009-05:00

Have you made any marketing resolutions for the New Year? This post from Lyne Noella might spark some ideas for your own practice. She listed her Top 5 New Year's Resolutions, all applicable to expert witness/professional services marketing.

(Hat tip to Michelle Golden for the heads ups on this post)

Expert Witness Resource Round-Up

2008-12-03T16:04:00.004-05:00

A few resources to investigate and read while waiting in the airport or escaping from the in-laws over the holidays:

One of our newsletter readers alerted me to a document from the Federal Judicial Center, "Manual for Complex Litigation." Written by and for judges, it contains good information about what is expected at each stage of litigation, who is supposed to attend various conferences, rules of discovery, etc.

Roger Matus of the Death by E-Mail blog, produced a list of 10 Things to Never Put in Email - especially relevant for expert witnesses. Remember, everything you say or write can come back to haunt you or even ruin a case.

Over on the Juris Pro blog, Karen Olson has posted a short list of "Practice Tips on Expert Witness Fees."

IMS ExpertServices identifies the "Top 10 Expert Witness Cases of 2008" in their December newsletter.

The 2009 Annual Conference of the Forensic Expert Witness Association will be held February 26-28 in La Jolla, California. As the online brochure explains, this conference is designed to help experts of all disciplines stay on "the cutting edge as it relates to courtroom presentation and written work product." Presenters include well-known attorneys and experts.

Here's an older article you would have to hunt down (see if you could borrow an issue from an attorney), but in the October issue of TRIAL magazine, hotel expert Peter Tomaras along with attorney Alison Werner Smith published the article, "Closing the Attorney-Expert Gap." The format makes it quite compelling, providing both the expert's perspective and that of the attorney.

Happy Holidays!

Are You Visible On the Internet?

2008-11-28T11:37:00.004-05:00

One of the services we provide our expert witness clients is search engine optimization. But if you are working on your website yourself and want some pointers, Google just released its SEO Starters Guide with some surprisingly good explanations about how Google ranks websites and steps you can do to improve your website's visibility.

Lawyer Involvement in Your Expert Report

2008-11-03T12:15:00.002-05:00

How much input should your attorney-client have in crafting your expert report? Where is the boundary? Attorney Robert Ambrogi addresses this in a recent newsletter published by IMS Expert Services, "Expert Reports: Should Lawyers Keep Hands Off?" Be sure and read the comments section as well.

While you're at the IMS website, check out Rosalie's article "Marketing Your Expert Practice in a Recession" too.

Perils of the Internet for Expert Witnesses

2008-10-08T07:16:00.003-05:00

In the October issue of Florida Trend, the business magazine for our fair state, I read a comment from consultant Amy Singer regarding online research about jurors. Singer states, "We ask them ...whether they have a website....a blog...a MySpace page... Then, if it's public, we can really look at those things...."

Just another reminder that everything you say and do (especially online) can and will be cussed and discussed and used against you. I assure you - if trial consultants are doing this type of research on jurors that attorneys are vetting you the same way prior to engaging your services.

Be aware of everything posted on your own website of course, but also what family members or friends might say about you on their sites. Watch what you say if you comment on others' blogs or networking sites. Once it's out there - it's there for all to see.

Expert Witness Websites - Contact Info?

2008-09-29T13:29:00.008-05:00

I hate to bring this up again, but --- please include contact information on your website! I had a friend contact me recently for help in finding an expert witness in a particular area of expertise. I found four and went to their websites. Two (TWO of the four!) had NO contact information whatsoever. One had a "Contact" form with several lines of required information. Only one had a phone number, address, and email listed.

An attorney is not going to take the time to search for how to reach you; he or she is simply going to move to the next expert on the list. Nor will they fill out a "Contact" form.

The point of having a website is to help potential clients find you when they need your services. If they can't then contact you and retain you, why bother?

Expert Witness Expenses

2008-07-10T10:46:00.004-05:00

If you frequently travel by car for business purposes, you may want to note that on July 1, 2008 the IRS raised the standard mileage rate used to calculate the deductible costs of driving a vehicle from 50.5 cents to 58.5 cents. They normally only adjust the rate once, at the beginning of the year, but the rising cost of gas made a sixth month change seem more reasonable and fair. You can see more at http://www.irs.gov/

Contracts, Retainers - Getting Paid by Attorneys

2008-06-05T15:51:00.004-05:00

We have had many discussions with our newsletter readers about 'getting paid' by their attorney clients. Rosalie addressed this most recently in "Expert Question on Being Retained". One issue she addresses is the signatures on the expert's engagement agreement. I received the following email in response to her advice in that article:

"Your message is right on point. I was recently engaged by a criminal lawyer to help defend a client against a DUI and manslaughter charge. The lawyer sent me a $2,000 retainer and a signed contract, but I carelessly ignored the signature on the contract as it was signed by the mother of the defendant instead of the lawyer.

As a result of my testimony, in a jury trial, I was able to help the defendant get free of the manslaughter charge which could have meant 10 years in jail. However, the lawyer for the defendant still owes me a large amount of money for my expert witness work and that lawyer has ignored payment on my invoices. I will probably end up taking him to small claims court.

In summary, I will carefully review, not only my wording in future retainer contracts, but also the signed signatures, by the other side, on the contract."

This not getting paid is too common a problem for expert witnesses!

What Would You Ask an Attorney?

2008-06-05T12:29:00.004-05:00

If you could speak frankly with your attorney clients or prospects, what would you ask them? In the next few weeks I will be interviewing several attorneys about their thoughts, experiences, advice, etc., regarding expert witnesses and consultants. What would you ask? Please leave me your suggestions in the comments (you can post anonymously).

U.S. Court System Not So Bad

2008-05-27T12:46:00.004-05:00

The United States legal system has its flaws, but compared to alternatives, we are doing pretty good. You, as expert witnesses, take your share of criticism - being accused of being hired guns, having your credentials and motives questioned, being lumped in with the few bad apples out there, etc. And of course, lawyers get the most criticism (Google "lawyer jokes" and see for yourself), some of it valid (see the compilations of responses from our newsletter readers - Expert Pay Discussion and Designation Without Permission). But judges and the system overall are frequently under attack as well.

Judge John C. Lenderman wrote a well-articulated column, "In Defense of the Lawyers" in the St. Petersburg Times in which he makes a case that "Our system of justice does not tolerate frivolous lawsuits, nor does our system of justice tolerate the actions that give rise to lawyer jokes."

From your experiences with the players and the system - do you agree with Judge Lenderman?

It's Not Too Late...

2008-05-23T16:55:00.004-05:00

The 17th Annual National Expert Witness Conference is coming up - June 19-20 in Hyannis, Cape Cod, Massachusetts. Presenters include judges, attorneys and experts. Here's one expert's feedback from last year's event:

"I went last year and it was great. Not to mention my business doubled last year. I have been an expert for 15 years and didn't realize how much I didn't know. Last year was the first year I went. I will be unable to attend this year but will try again next year."

Rosalie has attended several times and always comes away with good ideas and new relationships. It's not too late to get in on this year's conference.

Marketing Professional Services Can Be Risky

2008-05-23T16:34:00.005-05:00

Marketing an expert witness practice carries its own unique risks, but marketing any professional service takes some courage. How do you know it will work? What if it not only fails, but alienates potential clients? Not to mention that you've probably put a hefty chunk of change into the effort.

Bruce W. Marcus, international pioneer in professional services marketing, has written a great essay "Is Marketing Worth the Risk?" in which he addresses those risks and ways to mitigate them. A good read and worth your time.

Expert Witness Resource Round-Up

2008-05-15T16:00:00.004-05:00

A brief selection of recent articles and resources:

Should experts collaborate or compete? This is the question addressed by attorney Robert Ambrogi in "Expert Secrecy: An Ethics Dilemna?" This article has generated several comments from readers.

The second part of Allan Griff's article "Why Do They Call Us Witnesses" (I mentioned the first part in an earlier post) has been published at the IMS website.

Dr. Perry Hookman has just published Medical Malpractice Expert Witnessing. Although it addresses the expert witness, it extensively covers issues faced by the defendant physician as well. As Dr. Hookman writes in the introduction, "I wrote this book because this is the kind of book I wish was available to me prior to my first harsh contact with the U.S. medical malpractice tort system."

Finally, with the vast information available about all of us on the Internet, I suggest you check out the Electronic Privacy Information Center's "Online Guide to Practical Privacy Tools." (Hat tip to Jim Calloway for the heads-up on this site.)

Designation With/Without Permission

2008-05-05T18:43:00.003-05:00

In light of our recent discussion on being designated as an expert without being contacted/retained by counsel, this decision by state Superior Court Judge Raymond Batten is quite interesting. He was asked to disqualify an expert witness for the prosecution because the defense team had contacted him first. He denied that request because the expert was neither under retainer nor had any agreement to testify for the defense.

Perfect Time for a "Howdy" Card

2008-05-05T16:24:00.004-05:00

With the U.S. Postal rates set to increase again on May 12th, now is the perfect time to send a "howdy card" to your contact list and save some money in the process. (You might also stock up on "Forever" stamps, which are good for first-class mail forever, no matter what rate increases occur in the future.)

As Rosalie says, "The topic of a professional announcement you send to clients and other potential referral sources, as well as good prospects, is almost beside the point. Your real objective is just to say "Howdy," to bring you and your services to the recipient's mind. So I call them "Howdy Cards."

Different Fees for Different Clients?

2008-04-28T20:47:00.005-05:00

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

2008-04-18T07:32:00.005-05:00

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

2008-04-15T14:41:00.006-05:00

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

2008-04-03T13:33:00.004-05:00

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"?

2008-04-01T14:23:00.005-05:00

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.

Charging for Your Time

2008-03-22T14:29:00.005-05:00

Do you charge for every minute you spend working on a particular project or case? What about when a past client calls and asks you to look up a detail in an old file? It may take you fifteen or twenty minutes to find that file and then another ten to email or call the client back. Do you charge for it or chalk it up to part of doing business?

What about those five minute phone calls for updates or "I need this document" or "the deadline for this is..."?

These "little" interruptions can quickly add up to billable hours you are missing out on. How do you handle it?

Meet the Expert on Expert Witness Marketing

2008-03-22T14:18:00.003-05:00

My mother Rosalie, the Expert on Expert Witness Marketing, will be speaking at the NADE Conference on April 23 in Austin, Texas and at the FEWA Workshop in Dallas, Texas on December 5.

If you will be attending either of these events, be sure to say hello!

I'll let you know about her other speaking engagements as they come up - Rosalie really enjoys meeting readers of our newsletter and blog and putting a face to a name.

Experts and Social Networking

2008-03-17T18:30:00.003-05:00

Clark Johnson at Round Table Group is working to educate expert witnesses on how to use the internet and social networking platforms to communicate with each other.

I realize that for many professional service providers, this is the latest and greatest in marketing and getting known. However, since everything an expert says and writes can and will be used against him or her, I wonder about the wisdom of experts using this marketing method.

How do you feel about it? (You can leave your comments anonymously : ) )

Misstatements by Expert Witnesses in Deposition

2008-03-07T12:23:00.006-05:00

Yesterday, while researching the answer to a client's question about depositions, I came across the following from Depositions: The Comprehensive Guide for Expert Witnesses.

Correct Misstatements as Soon as Possible: Expert witnesses are not expected to be perfect. During a long and arduous deposition, an expert may misspeak or make a mistake or error. If this I happens, the expert should correct the error on the record as soon as she recognizes the error: "I want to correct a statement I made a few minutes ago. I stated that the 2005 EMG was related to the surgery. That is incorrect. " Counsel may challenge the expert on the mistake before she has an opportunity to correct it. In that case, the expert should admit the error graciously.

After making a mistake, the expert needs to avoid making the matter even worse by an inability or unwillingness to admit the mistake. This could make the expert look biased. If the expert discovers a mistake after the deposition concludes, she should notify counsel and correct the deposition transcript when it comes for her signature.

Example: How to Admit a Mistake

Q: You only treated her for a 2005 accident, correct?
A: You know, it's interesting. I'm looking at what we wrote down here and it says "2001-2004 motor vehicle accident, recovered." I may have misinterpreted what this note was. The accident was '01, but we saw her in '04; and I apologize if I misled you.

Practice Pointer: The expert has done a good job handling his mistake. He comes off as human and above all, honest.

Knowing how often I myself misspeak, you might want to keep this advice in mind.

Can Your Expert Practice Survive the Unexpected?

2008-03-03T18:07:00.002-05:00

Are you prepared for the unexpected? Could your practice survive your absence for an extended amount of time? After a recent extended illness, I am giving a lot of thought to these questions and more, and urge you to do so as well. What will happen to your practice if you unexpectedly take ill or suffer an accident or natural disaster?

Do you have disability insurance? Do you know a trusted colleague you could pass your active cases to? What about your employees - do you have a plan to pay them if no new business comes in the door for awhile? Do you have a minimum of three months reserve built up for your own living expenses? Who would notify your clients and put your plans into action if you were unable to do so? Do they know what you would want done?

I certainly hope that none of these situations occur and any plans you make regarding them never have to be enacted but, as my mother says, the best way to prevent disaster is to plan for it.

More Expert Witness Resources & News

2008-01-29T13:38:00.000-05:00

Thank you to everyone for sending me the latest on happenings and resources for expert witnesses. Here's a summary of the latest:

The Round Table Group has introduced their blog for expert witnesses with a focus on web strategies to help experts and lawyers communicate.

Registration is open for SEAK's 17th Annual National Expert Witness Conference. Check out the line-up which adds two new pre-conferences and features a faculty that includes four distinguished judges.

Attorney-run JurisPro just worked out an agreement to have their expert clients made accessible through the national law firm of Fried Frank - another addition to the major law firms with internal access to JurisPro experts.

Rominger Legal has just added an Expert News feed to their expert witness directory. It contains various expert blogs and expert witness news stories pulled from the search engines.

The library at ExpertPages now includes over a hundred case summaries from circuit courts of appeals, where expert testimony was discussed and the library is regularly adding new expert articles to their library.

The expert networking group in New York has taken off with gusto. It is open to any expert witnesses and the next meeting is scheduled for February 25 at 12:30 at Fabio Piccolo Fiore, 230 E 44th between 2nd and 3rd Ave. For more information, email geraldgoldhaber@yahoo.com.

Podcast from the Entrepreneurial MD

2008-01-24T19:43:00.001-05:00

Philippa Kennealy, the Entrepreneurial MD, recently interviewed Rosalie Hamilton, the Expert Witness Marketing Consultant about helping professionals develop expert witness practices. Philippa links to the free podcast of the interview in this blog post.

Of course I'm biased, but I think Rosalie (my mother) sounds great!

Engagement Agreements Between Experts & Attorneys

2008-01-21T17:14:00.000-05:00

We frequently receive questions about retainers, contracts, billing, collections, etc., from experts. Some experts are hesitant to require an engagement agreement from their attorney-clients for fear of driving them away or appearing too demanding or some such idea.

Look - you are operating a business, just like your attorney-client. They utilize standard business practices, including engagement agreements, and so should you. I could go on and on about this, but there's nothing like hearing it from the horse's mouth. I found three different resources where attorneys themselves give advice to expert witnesses on this very subject.

In the presentation, "How to Be Picked, But Not Picked Apart" at our Tampa seminar, attorney Lee Gunn briefly touched on this issue. Here are some of his comments:

Communication, including the terms of engagement, scope of engagement, required retention, billing practices, frequency, payments, interest rates are all important elements of what you do ... a reasonable letter and agreement signed by the qualified agent of the hiring party is appropriate, should be asked for, is not offensive and avoids the angst and agony of confusion and surprise.

Attorney Rhoda Faller gives advice to experts regarding fees in the e-book, Expert Witness Preparation for Deposition and Trial. Included in her recommendations is this list:

Be clear as to your billing. It should be established, in writing, what your fee is for:

- Reviewing records
- Writing a report, if one is requested
- Your deposition or trial preparation time, including meeting with the attorney
- The actual deposition or trial time
- Any minimum time to be paid for a deposition or trial
- Travel time
- Who will make the travel arrangements
- If there are any special travel arrangements you require
- How much notice you require or cancellation of a deposition or trial appearance before you require payment
- Amount of retainer you require
- When you require a retainer
- If you require payment in advance for a review of records, a deposition, and trial
- How far in advance you require payment

She also advises, "Requiring upfront payment is not a bad idea unless you know the attorney well and have worked with him/her before. You do not want to go chasing your fee." I couldn't agree more!

And if you're still not convinced, here's what Steven Babitsky, Esq., James J. Mangraviti, Jr., Esq., and Alex Babitsky, MBA, have to say on the subject in The A-Z Guide to Expert Witnessing in the introduction to the chapter on fees, billings and collections:

An expert witness is entitled to be paid a reasonable fee for her time and expertise. (As an expert, an individual is paid for her time, not for her testimony.) The successful expert understands the engagement process, how much to charge, what to charge for, and how and when to collect her fees.

Experts should have the key financial terms of their engagement clearly laid out in writing before agreeing to work on a case. (Appendix R contains sample fee schedules, letters, and agreements.) These documents need to specifically cover terms including fees (including cancellation fees), billings, retainers, travel, expenses, and interest for overdue accounts.

For additional opinions and advice, you might take a look at our previous discussion on this issue in the free special report, Expert Pay Discussion, where many experts shared their opinions and best practices.

Marketing Lessons from Obama and Huckabee

2008-01-16T16:19:00.000-05:00

I follow the major political races pretty closely (my major at University was politics and government). Regardless of your ideology, there are marketing lessons we can take from the current campaigns for president.

One reason the Iowa caucuses and the New Hampshire primary are so key is the simple fact that it's not possible for the candidates to speak one-on-one to every voter in the country. But, they can, within those two small states, speak individually to many constituents. The results of those two races eliminate some contenders completely and put others at the forefront in the eyes of the nation.

The lesson: Face-to-face interaction matters. People choose - whether in elections or for professional services - people they know, or feel like they know. We remember faces and in-person conversations with much more affinity than we do a letter from a stranger or an ad in a publication.

So meet people. Include direct prospects but also possible referral sources and just anyone and let them know what you do. As Harry Beckwith says in The Invisible Touch, "Business is about people."

Tech Rant

2008-01-02T17:27:00.000-05:00

I try not to get too personal in my blog posts, but I am frustrated. In preparing for the start of the new year, I have been evaluating our technology and anticipated needs, costs, etc. I am highly annoyed at the need to "update" everything, even when it has been meeting our needs perfectly well since the last update. But, one way or another, we are forced into upgrades - customer support will no longer be provided; replacement parts are no longer available; the product will no longer be compatible with the newer version, which our clients will likely be using; so forth and so on. AAAAARRRRGGGHH!

How do you handle this in your own homes and offices? With your computers, cell phones, printers, PDAs, software, scanners, etc.?

Expert Practice Management

2008-01-01T19:28:00.000-05:00

One reader of our newsletter for experts recently shared with me these business model suggestions he uses in managing his own expert witness and consulting practice:

"These are basic operating rules that, in my opinion, if broken will cause problems:

1. Keep a low overhead. I work from my home, have resisted the temptation to pay anyone else rent. If the money is not coming in I don't have someone else looking for a check every month.

2. Stay out of debt. This sinks most businesses. I have a new car but it's not a Mercedes, BMW, etc. and I keep them 6 or 7 years. If you need a new car for a site visit or to impress a client, rent one for the day.

3. Keep a cash reserve. I always have at least a year of operating revenue in a CD. I do this not only for bad times but in place of buying disability insurance which has at least a 90 day deductible and is very pricey."

Do you agree with these suggestions? What are your "hard and fast" rules for maintaining a healthy practice? Share your policies and procedures in the Comments.

My Wishes for You in 2008

2008-01-01T19:22:00.000-05:00

I don't know if it ever occurred to him that everything he said might someday be quoted but Benjamin Franklin had a knack for saying the right words for every occasion, so I will borrow his words in sending you my wishes for this new year:

"Be always at war with your vices, at peace with your neighbors, and let each year find you a better man."

Spend Your Profits on Yourself

2007-12-29T12:19:00.000-05:00

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

2007-12-19T11:50:00.000-05:00

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

2007-11-18T15:41:00.000-05:00

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.

Expert Witness Groups and Events

2007-11-14T13:34:00.000-05:00

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

2007-11-10T19:39:00.001-05:00

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

2007-10-31T15:37:00.001-05:00

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

2007-10-24T13:23:00.001-05:00

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

2007-10-24T12:42:00.001-05:00

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

2007-10-08T15:38:00.000-05:00

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?

2007-10-08T15:22:00.000-05:00

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

2007-09-12T10:58:00.000-05:00

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

2007-08-26T13:53:00.000-05:00

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

2007-08-13T13:23:00.000-05:00

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

2007-08-01T14:35:00.000-05:00

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

2007-07-26T19:43:00.000-05:00

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

2007-07-24T12:30:00.000-05:00

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

2007-07-19T07:36:00.000-05:00

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

2007-07-09T09:03:00.000-05:00

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?

2007-07-02T08:18:00.001-05:00

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

2007-06-29T11:25:00.000-05:00

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

2007-06-27T08:35:00.001-05:00

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

2007-06-08T13:20:00.001-05:00

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?

2007-06-07T11:18:00.000-05:00

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

2007-05-30T13:38:00.000-05:00

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

2007-05-26T10:21:00.000-05:00

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

2007-05-23T13:41:00.001-05:00

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

2007-05-15T09:52:00.000-05:00

'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

2007-05-15T09:49:00.000-05:00

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

2007-04-26T14:31:00.000-05:00

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

2007-04-26T14:21:00.000-05:00

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

2007-04-23T10:54:00.000-05:00

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

2007-04-17T10:15:00.000-05:00

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

2007-04-11T07:48:00.000-05:00

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?

2007-04-07T15:17:00.000-05:00

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

2007-04-06T08:52:00.000-05:00

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

2007-03-27T17:42:00.000-05:00

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.

(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

2007-03-27T11:35:00.000-05:00

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

2007-03-23T11:16:00.000-05:00

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

2007-03-20T15:21:00.000-05:00

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?