Well I'll Be . . .

I have been surprised.

Back story:  Last month I attended the FEWA Dallas/Fort Worth Chapter Dinner Meeting at the Tower Club in Dallas.  Real estate expert Dr. Jack Friedman was presenting "Advertising and Promotion of Expert Services." And while the topic was of interest to me, in all honesty I was looking forward to hanging out with a couple of our clients I knew would be attending. 

Well lo and behold if I didn't hear something that made me sit up straight and pay attention. Jack was discussing the elements and format of an engagement letter.  He cautioned against sending as a Word document (or using "Compare Documents" feature if you did) because it could be altered without your knowledge.  I thought to myself, "Surely not,"  but as I began shaking my head, the stories came out from the experts attending.  Sure enough, attorneys have changed one or two provisions in the contract without notifying the expert and then sent it back signed without saying a word!  It never would have occurred to me to check line-by-line like that, but at least three experts confirmed that this happens.

So two lessons to take from this:  There is always something you can learn and check your engagement documents carefully!

Expert Witness Round-Up

Jumping right in to an eclectic assortment of expert witness news and advice, let's start at the beginning --  Do you/should you interview your prospective attorney-client before taking the case?  Attorney Tom Shroyer has some factors for the expert witness to consider when screening an attorney.

The American Medical Association reports on recent rulings regarding the qualifications of medical expert witnesses (helpful summary at end of article on 13 important rulings from the past year).

NACVA asks "Expert Witnesses:  Is Your Internal Testimony Consistent?" Turns out, all mistakes  are not the same in the eyes of the jurors.  The cross-examination by attorney Doug Abbott is worth the read.

Are you a good teacher?  Attorney Marvin A. Tenenbaum describes the teacher-like qualities an expert witness wants to have when appearing before a judge and a jury.

And finally, I like to close with a smile.  Over at the ABA Journal, these real-life malapropisms posted by attorneys should do the trick.

Litigants Are Not Your Clients

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

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

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

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

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

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

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

I sent him my opinions via email and verbally.

He wanted a full report.

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

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

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

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

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

Lesson learned.

Perils of Non-Objective Testimony

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

Expert Witness Round-Up

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

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

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

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

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

Expert Witness News & Reading

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

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

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

Have a great week!

Expert Witness Advertising

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

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

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

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

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

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