U.S. Court System Not So Bad

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...

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

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

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

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

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?

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

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

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

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"?

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

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

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

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

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?

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

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

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

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

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."