Attorneys Getting the Most Out of Their Experts

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

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

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

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?

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

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

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

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

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

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

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

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

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?

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

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.