Experts Can Sue and Be Sued

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

Expert Witness Key to $2M Verdict

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

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

Experts - Critique Your Communication Skills

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

How Do You Come Across on the Stand?

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

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

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

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

Attorney Refuses to Pay Expert for Deposition

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

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

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

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

Attorneys' Thoughts on Expert Witnesses

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

President Bush and Expert Witnesses

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

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

Am I missing something?

Build Your Network at Conferences

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

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

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

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

Get Better Results from Your Google Searches

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

Requirements for a Successful Expert Practice

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

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

Protective Billing Practices for Expert Witnesses

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

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

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

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

Caution to Experts Who Discount Their Fees

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

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

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

Latest News for Expert Witnesses

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

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

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

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

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

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

Listen and Hear - It Matters

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

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

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

Are You Missing Calls?

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

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

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

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

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

News/Opinions about Expert Witnesses

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

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

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

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

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

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

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

Regulations and Policing of Experts

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

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

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

Warmest regards,

Meredith

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

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

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

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

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

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

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

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

(C)  The credibility of witnesses or other persons.

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

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

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

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

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

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

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

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

New Resources for Expert Witnesses

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

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

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

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

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

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

Mailing to Attorneys

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

Professional Organizations Policing Expert Witnesses

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

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