Building a Successful Expert Witness Practice

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

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

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

"Out of Office" Automatic Email Responses

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

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

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

You Never Know Who You'll Meet

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

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

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

Expert Witness News & Resources

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

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

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

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

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

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

Attorney to Attorney Advice Helpful to Expert Witnesses

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

1. Who engaged you in this case?

2. What did they ask you to do?

3. What did you do?

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

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

At a minimum, be prepared to answer these questions.

One Expert's Method for Handling a Billing Dispute

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

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

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

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

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

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

Research Yourself Online

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

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

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

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

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

Email Is Not Duct Tape

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

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

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

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

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

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

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

The Billing Time Song

I laughed out-loud at this spoof of Cyndi Lauper's "Time After Time" song on YouTube. Called The Billing Time Song , it was a welcome moment of lightness in what has been a harried week preparing to go out of town. Thanks to Neil J. Squillante at TechnoLawyer for the heads up on this video.

Are Goals Important?

I'm jumping the gun a bit here, but we are nearing the time of year when many assess the ending year and set priorities for the coming year. That said, some of us have the best of intentions to do this and never quite get around to it. Life tends to throw 'must-do's' and just everyday stuff at us so that before we know it, the week, month, year, etc. is gone.

So here is my suggestion - check out this article by Kevin Eikenberry "The Pause that Refreshes: Seven Reasons Why Goals Matter". The very first reason he addresses really hit home with me:
"Goals create acccomplishment instead of activity." How much of my time is spent on 'stuff' that does not contribute to my purpose(s)? Answer: too much!

Print it out and take it with you. When you escape to the garage to hide from your in-laws during the holidays, you'll have something to read and think about.

Designation of Experts - The Discussion Continues

We have recently been discussing the problem of being designated as an expert without permission and/or without having received a retainer and often without even knowing about it. (If you missed the discussion, the PDF summary can be downloaded from the right column of this blog.)

One of our newsletter readers emailed me this week regarding that discussion:

"...one of the recurring questions was how to discover whether or not we have been disclosed as experts without our knowledge. In this day of IT and search engines, there must be a way to do this. Adversary attorneys always seem to know of our past testimony, most likely from Lexis-Nexis searches, and attempt to use it to impeach us. My question is this: would a Lexis-Nexis search be able to discover all the times a given expert has been disclosed? If it does, it would pay for us to subscribe to Lexis-Nexis, or at least pay for periodic searches, or even have friendly retaining attorneys do it for us. If we can discover that we have been disclosed without payment of a retainer, that is the first step to collecting damages, and to stop this from happening again."

Here was my reply:

"I called an attorney friend of mine who is familiar with Lexis and here was his take: 'Because expert witness designations are not always part of the public record, there is no easy way to know when an attorney has designated an expert. LexisNexis would not yield this information, as designations are usually only exchanged between opposing parties. There is a distinct difference between when an expert has testified and when an expert has been designated. Expert testimony is much easier to uncover than designations.'

The attorney I spoke to is in California and pointed out that in that state (and believe me, it differs a great deal from state to state!) the attorney has to swear under penalty of perjury that the expert has agreed to testify at trial. Therefore, an expert who designates an expert in California without their permission risks criminal penalties. Some other states have similar statutes."

Any thoughts on this subject? Is the situation different in your state? Is this something the American Bar Association should/could address? Post your comments and suggestions here or email them to me at meredith@expertcommunications.com . This is too common a problem and I'm not one to just say, "well, that's the way it is".

For That Special Attorney in Your Life

If you haven't already planned a holiday mailing to your list, you've probably missed the boat. But for attorney specific cards and clever gifts for legal professionals, I discovered a site called The Billable Hour . Some of the "greeting" cards cross the line between humorous and offensive, so be selective and judicious. Check out the nifty gift items under TBH Office like the Sign and Seal (referring to the animal called a seal) or the Slam A Gavel.

And if you missed the "holiday" mailing, it's not too late to get a New Year's mailing out. Check with your local printer or the various card catalogs you've doubtless received and be originial. Your card or announcement for the new year could stand out even more, coming after the flood of holiday greetings!

Don't Miss Out on Key Expert Practice Info

I have mentioned attorney blogs before as being full of valuable information for experts as well as another way to find out about and reach potential clients. Attorneys have blogs based on jurisdiction, subject matter, and numerous other niche topics. You can find the best ones for you through lists such as Blawg or taxonomies like 3L Epiphany , which can be a goldmine of information once you explore it a bit.

For example, medical experts of all types from around the United States should be following the legal proceedings regarding professional medical associations in relation to expert testimony. See the blog post by Rick Shapiro last week - "Lawyers Battle On For The Doctors Who Testify In The Courtroom".

Or, for insights helpful to experts of all kinds, you can find advice from attorneys to other attorneys regarding expert witnesses, such as the recent podcasts by Evan Schaeffer on "Advanced Deposition Techniques" or the Trial Lawyer Resource Center , a blog with posts from many trial lawyers addressing multiple issues and topics. Use the 'search site' tool to look for your key words; put in "expert witness" and get an attorney's view of the five most important questions to ask an expert witness at deposition.

One potential resource, which I must admit I was hesitant to even visit, could be YouTube . Various depositions and advice about depositions have been posted there in recent weeks. Try different searches such as "deposition", "expert witness", and terms specific to your practice.

Lesson Learned (Again)

Why do we so often forget the lessons we've learned? Why, when something is working, do we stop doing it?

More than once an expert has contacted us saying, "Last year at this time, I had tons of cases. Now I have nothing."

When asked, "What were you doing last year that you aren't now?" the response is something like, "Oh, I was just attending section meetings at the local bar association and sending out professional announcements to my contact list every few months."

"So why did you stop?"

"Well, business was good."

DUH! (This also illustrates that marketing is not something you only do when business is bad - but that's a whole 'nother article.)

I am guilty of doing the same thing in many aspects of life. For example, I know that I feel better and have more energy when I drink a lot of water. But it's not until I've been feeling sluggish for awhile that I remember that and starting drinking more water! It was working, so why did I forget?

If your business has fallen off or any other area of your life is not quite up to par, ask yourself, "What was I doing differently when things were going well?" and start doing those things again!

Establishing Expert Independence

Establishing an expert's objectivity is critical not only in concrete ways but in others' perception of it. In an article in The Chattanoogan, Mike Costello addresses this issue:

Experts may never seem totally independent because they are being paid for their services. But, the apparent lack of independence may be nothing more than the appearance of a relationship between parties, even though no relationship exists.

As we always stress, you are NOT an advocate - that is the attorney's job but this is a good reminder that fact and appearance are two different concepts in the courtroom. Opposing counsel's job is to discredit your testimony, and as Mr. Costello writes:

The attempt to impeach an expert because of relationships with counsel or the client, the amount of fees charged, or contingent fee arrangements is common in today's legal environment.

Also in this article are tips to establishing independence that include not altering your billing rate and practices for different client-attorneys, keeping a balance of plaintiff and defendant work, and discussing any potential 'gray areas' upfront with counsel at the very beginning.

Good advice and a reminder that just because WE know something to be true and done with integrity doesn't guarantee that it appears that way or that it can't be made to appear otherwise.

Have You Been Named as an Expert?

The discussion about being named as an expert without permission or retention by the attorney continues to bring in additional questions but few answers. (If you missed it, you can download the PDF "DWP - Expert Designation Responses" from the right column of this blog).

One of the most frequent inquiries is about how to find out if you've been designated without your permission. I know of many places to find records and transcripts of expert depositions and testimony, but have yet to find something like this. Often, when an expert is named in this way, it is to encourage a settlement based on the esteemed reputation of that expert. So the matter never gets to court, where the records would be more easily found.

Have any of you found a way to research this? How do you usually find out that you've been designated by an attorney (especially if the attorney has never even contacted you before)?

Travelers Beware - Are you being overcharged?

I tend to believe the best about people and companies until they give me a reason not to. I may have to rethink that attitude, based on Chris Mercer's recent experience with Hertz. He was overcharged in a manner that just couldn't be a mistake. As Chris shares in his blog post:

Did they hope I wouldn't notice the overcharge? It would certainly have been easy to miss in the rush to get from the car to the gate.

Read the whole story and 'buyer beware' - I'll be looking closely at my receipts from now on.

Reminder: Include Contact Info!

While researching various proposals from vendors this weekend, I was remimded that sometimes in our own business we are too deeply involved to see what it is obvious to outsiders.

If you have a business website - why? Is it not to inform visitors and invite them to contact you, make a purchase, or request more information? So wouldn't you want to make it as easy for them to reach you as possible? Yet the number of websites I visited that lacked easy-to-find contact information was astounding!

They might have a form to fill out that sent an email, but no physical address or phone number. And I tend to suspect any business that won't provide a physical address as being less than legitimate anyway. But why not offer every conceivable way for prospects and potential clients to reach you? Meet their comfort level - be if fax, phone, email or snail mail. And make that information easy to find; I didn't waste time looking past two mouse clicks, and research shows most of your website visitors won't either.

Rosalie's Rant

The cheaters are getting more clever. I received a fax from "Domain Registry Support" with an "Urgent Notice of Domain Extension," with lots of legalese under a heading of "In Accordance with the United States Legal Code," and including a paragraph beginning "Evidence of Registration and Use in Bad Faith."

It was a sales solicitation for another domain name!

Read this stuff carefully. I periodically get calls from clients who have received emails or faxes and are concerned that their domain name or hosting has expired. Don't mistake a sales solicitation for a genuine renewal notice. And watch those, too. A few months ago we were treated to domain name sales pitches couched as renewals. Read your mail, and you can discard most of it. - Rosalie

"Quackspertise"

Thanks to Robert J. Ambrogi for giving me the heads-up in the Legal Blog Watch about this article on 'junk science' and state courts. This past Saturday, the Wall Street Journal published an op-ed by David Bernstein, a professor at George Mason University School of Law and prolific writer on issues surrounding expert evidence.

Bernstein has (with WSJ permission) reprinted the piece, "Rule of Law Quackspertise" at The Volokh Conspiracy in which he encourages state courts to use the tools provided by the federal rulings (such as Daubert) to "ban junk science and quackspertise." He refers to a recent New York case to support his contention that, "despite far-reaching reforms, junk science still plagues American courtrooms."

With several changes to the Federal Rules of Evidence currently in progress, I found it worthwhile to spend a few minutes perusing his article and especially the feedback left by other attorneys in response to this piece.