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.

See Rosalie in Vegas (and a rare opportunity)

Are you going to the Forensic Expert Witness Association (FEWA) Annual Conference, "How to Be an Effective Expert Witness," in Las Vegas this month?

If you are, don't miss the pre-conference seminar, "Expert Witness Marketing Secrets," presented by Rosalie Hamilton and attorney Jim Robinson. They are looking forward to revealing the secrets behind successful expert witnesses and will cover topics:

• How Attorneys Dig Up Dirt on Expert Witnesses
• Expand Your Practice:  Succeed as an Expert Witness
• Expert Websites
• Expert Billing & Collecting

And the best part? At the end of the day, Rosalie will open up to any question you want ask about this sometimes crazy business - a rare opportunity.  Information on this pre-conference seminar can be found on page two of the conference brochure.

Let me know if you're planning to attend and Rosalie will keep an eye out for you!

In Memoriam – Julius S. Piver, MD, JD

(Guest post by Rosalie)

We are sad to tell you that a beloved client and friend has passed away. 

Dr. Julius Piver, an OB/Gyn and legal consultant, died March 22, peacefully and surrounded by his adoring family. 

Julie would have been 88 next month and was still practicing gynecology and doing expert witness work.  When he notified me two weeks ago that his condition was terminal and I

cancelled advertising and other marketing, one referral service told me he had three active cases just with them.

We should all age like Julie did.

I was privileged to meet Julie and his wife Louise at an expert witness conference more than ten years ago, and then to help Julie with his marketing.  It was fun, because although his years were old, he wasn’t, and quite recently we were still adjusting details like not including dates on CV elements.  Obviously, it takes little time to find out that information, but we didn’t want it to be the first thing an inquiring attorney saw, because age was not representative of Julie.  He obtained his law degree at the age of 62! 

A few years ago, when I was living in Florida, I had some female issues and consulted with Julie, in whom I had the highest confidence.  Meredith reminded me today that when I notified Julie of my situation, it was as though he dropped everything and called me instantly, which further endeared him to us.  After talking with him, I planned, if I did not get satisfactory treatment where I was, to switch roles with Julie, travel to Maryland and jump up on his examining table for a real expert consultation.  I would of course have gotten to visit with Julie and Louise as well, so even though my medical issues resolved, I am sorry I didn’t make that trip.

I don’t get to meet many of my clients in person, so I am grateful for that breakfast meeting with the Pivers so long ago, when we became instant friends.  Since that time, Louise and I have noted each other’s birthdays and other important dates (57 years of marriage for them this year!) and news about our children and their grandchildren.  I also got to see Louise again when I attended a book signing for their daughter Susan Piver Browne, who has become a respected author.

 
We are including a link in case you would like to read Julie’s obituary.

Wherever he is, I hope Julie is entertaining his friends with that little infectious chuckle, and I wish for Louise and the rest of their dear family the comfort and joy of precious memories.

We are fortunate to have known such a special being.  He will be missed.

Rosalie Hamilton

Google Changes and Your Web History

The major changes to Google's privacy policy go into effect March 1st. If you are at all concerned about this, or offended like me, you have today and tomorrow to delete your web history. An article in the ABA Journal pointed me to the Electronic Frontier Foundation's instructions on how to do this. (If you do it, you might want to take a minute to go back to your oldest history - it was amusing to see what I searched for in 2006).

I was astounded when Google first announced what they were planning. In his blog post, Et tu Google?  attorney Jim Calloway articulated some of the same thoughts racing through my head.

Dancing Monkeys and Free Snowcones

When helping experts market their practices, we don't expect them to know everything about marketing and especially marketing with a website; that's why we're here and what we do.  However....

We have a folder called the "Expert Witness Marketing Hall of Shame" for situations we just never anticipated encountering with experts, things we never thought we would have to explain.  Now, while every particle of my being would love to show you some of these websites, I can't bring myself to do it.  But I will share some of the top nominees for the "Hall of Shame."  Take these as a caution of what not to do, or a validation that your website isn't so bad after all.

The dancing monkeys.  Seriously.  On the home page, dancing over and through the text are dancing monkeys. Let's ignore the animation challenges and skip to the courtroom.  If by some chance an attorney actually retained the services of this expert, can you you imagine the fun opposing counsel would have with this on the stand?

This next one is just inexcusable.  On the CV posted on his website, in addition to the expert's own birthdate AND social security number, were the birthdates of the his children!  How do you begin to explain why this is wrong on so many levels?

And what I currently consider the leading contender has to be the free snowcones.  If you call for a free! consultation, you will also receive a coupon for a free! snowcone at the local fair.  I.kid.you.not.

Not All Work Is Good Work

Turning down business seems to go against everything we've ever been taught, but sometimes, it may be the smartest thing you can do.

When Rosalie and I read Michelle Golden's post, "Knowing When (and How) to Say No," we both knew we had to share it. As Rosalie put it, "Some of this I couldn't have said better myself. Experts will sometimes accept any and all comers (the same wrong thinking as offering low rates), hoping it will lead to success, whereas it results in the opposite. I hope experts will read and heed this good advice."

Check it out and let us know -- have you ever said no? Have you regretted NOT saying no?

Initial Inquiry Call from Attorney

Following Rosalie's June newsletter article, "How Much to Say in the Initial Inquiry Call," several experts sent me their own "initial call" procedures. Here is one so clear and comprehensive, I wanted to share it:

When a new attorney calls me and tells me general information about a case he has, I listen politely, I take notes to protect myself, and then I offer to send the attorney a copy of my CV, my Rule 26 disclosure, and a standard copy of my retainer agreement. Since the attorney calling always wants to know what my rates are, I simply tell them I will forward the retainer agreement, and all costs are fully disclosed. I then email all the documents to the "new" attorney.

My retainer agreement not only lists the fees and scope of my work, but I also have a clause (in bold) that expressly forbids the attorney from disclosing me as an expert witness if the attorney has not retained me. This happened many times in my early career, and that is why I put it into my retainer agreement. The clause also states I will take action against the attorney if I am listed without being retained. This clause has stopped attorneys from listing me as expert without retaining me. In addition, I have proof that I sent them the retainer agreement, thus I know my clause has been read. [editor's note: see other experts' experiences on being designated without permission in this past discussion.]

I never, never offer an opinion of a case based on information given to me by the attorney. On the initial call, when asked my charges, and if I think I can help them, I simply reply that I cannot determine the cost until I have seen the documentation, and that I do not know what my final opinion will be until I have reviewed all documents and have performed my analysis. I do tell them I've done this for many years and I work quickly. By seeing my Rule 26, they can view the types of cases I have testified, and who the hiring attorney was. That lends to credibility.

Over the years, I have found the really smart, professional attorneys will not try to solicit an opinion from an expert unless the expert has done their own investigation. And since my retainer agreement loooks just like an attorney's retainer agreement, a good attorney will respect that the expert will not work for free. I have found that the more professional I am, the more I am respected. I know that is a hard act to balance when you are new and trying to drum up business, but it is imperative, in my opinion, to start out highly professional, with stated fees and conditions prior to offering an opinion and to stay that way throughout your career. There will always be attorneys out there that are trying to get something for nothing. That is not the type of attorney you want to work with anyway.

Wise words from a seasoned expert.

Expert Witness Income - Nobody's Business

How much do you make testifying as an expert witness? The Appellate Division of the Superior Court of New Jersey has ruled that you should not be required to share that information. Attorney John Day has all the details.
(Hat tip to Toby Edwards at Round Table Group)

Tips for Testifying

Attorney Elliott Wilcox has some tips for expert witnesses on testifying. Having served as the lead trial lawyer in nearly 2oo jury trials and numerous non-jury trials, he might know a little about this . Mr. Wilcox cautions that this is just a quick primer:

Don't get rushed. Get into the pattern of "Question - Pause - Answer." By ensuring that you pause after each question (regardless of the question's difficulty) you'll avoid getting pushed into rapidly answering the defense attorney's questions.

Talk to individual jurors, not "the jury." Make eye contact with individuals. Think "conversation," not "soliloquy."

Remember that you're always on stage. Maintain a serious composure before and after you testify. The jurors might see you as you drive into the courthouse, in the hallways as you wait to testify, or after you've finished testifying.

If you make a mistake, correct it immediately. You've heard that "it's not the crime, it's the coverup." Jurors will forgive you for making a mistake -- they won't forgive you for covering it up.

Don't look to [your attorney-client] for answers. [He/she] can't help, and it looks like you can't take care of yourself.

Don't be a jerk. Unfortunately, it needs to be said. You can have all the brains in the world, but if you're a jerk, the jurors won't want to listen to you.

New Rules Affecting Experts Begin December 1st

Attorney Robert Ambrogi discusses the changes to Rule 26 of the Federal Rules of Civil Procedure that will protect some communications between experts and their attorney-clients, such as draft expert reports. Read the entire article in the IMS newsletter.

Manners Matter for Expert Witnesses

As an expert witness, your demeanor can be critical to how triers of fact view you, your report, and your testimony. Respect, politeness and composure can make a big difference in how the jury sees you. In "Effective Expert Preparation and Presentation," in The Advocate Magazine, May 2010, the Honorable Peter J. Polos (Ret.) writes that in addition to "Yes, sir/ma'am" and "Your Honor" that:

Experts should not let their tempers show no matter how bad the behavior of the questioning attorney. If the expert maintains his or her composure and the cross-examining attorney does not, it can only negatively impact the other side. Some of the the worst expert testimony I saw was due to argumentative or defensive testimony by the expert on cross-examination.

I will add from a marketing perpective that word gets around among attorneys. If you are known as composed and well-mannered, you are more likely to be referred and recommended to other attorneys.

(Unfortunately, this article is not available online but I highly recommend you read the entire article if possible. Judge Polos has valuable advice on several areas of expert witnessing)

Expert Witnesses from a Juror's Perspective

I frequently read advice and reactions from attorneys and judges regarding expert witnesses. It is rare, however, to hear it from a juror's perspective. Here are one juror's comments after a recent seven day trial:

Expert Witness for Plaintiff [EWP] was not board certified and claimed the reason he wasn't was that it was too expensive.

EWP was flown into [city X] from [several states away]. This was suspect , as we do have a leading medical center here; surely they could have found an ontological hematologist from [city X]. Would have set better with [city X] jury for sure!

EWP' s attitude -- I'm right and everyone else is wrong -- was simply not digestible by this jury. It just didn't wash. There not standard of protocol for this treatment, so there can be no absolutes.

EWP did not address the jury, but plaintiff's lawyer.

EWP was not cool or calm.

The Expert Witness for the Defense [EWD] was excellent. Spoke directly to the jury, was board certified...EWD was careful to state, that for this patient, this situation, the doctor made right decisions. Plaintiff's lawyer was able to get EWD to agree to many things, but EWD kept clarifying with, "I agree to this, but not for this patient in this situation."

Five Important Expert Witness Rulings

Whew - it's been a big year for legal decisions involving expert witnesses. Attorney Robert Ambrogi at IMS Expert Services reports on the Top Five Expert Rulings of 2010 (so far). Take a look - these rulings could affect you.

Keep in Contact with Attorneys

We frequently talk about sending out professional announcements and the like as a way of staying on the radar of your prospects. I recently heard from two experts who are being innovative in this regard. One expert witness recommends referring a potential client to an attorney on your list and letting him or her know you are doing so by asking them if it would be okay. (True networking is about providing value...)

Another expert keeps track of law firms' charitable events and functions such as golf tournaments and either participates of just attends. The key to this type of marketing is not to go and hand out business cards, but rather to meet people and form relationships. And remember, listening actually creates a better impression than talking sometimes.

Hostile Opposing Counsel - Part 2

Continuing the input from expert witnesses on dealing with hostile opposing counsel in deposition:

I have been doing expert witness work for 25 years. Attorneys basically have two tactics. They can either attack your opinions or attack you personally. If the whole deposition is about attacking you personally, you know you have won! If you the attorney could attack your objective opinions, he would certainly do so. If he refrains from attacking your objective opinions, he knows you are completely accurate. Therefore, since he can't directly dispute your opinions, he can only attempt to discredit you and therefore, by implication, your opinions.

If the attorney spends most of the deposition attacking how much money you make as an expert witness or how you testify more for one side or the other, or is extremely obnoxious and aggressive, just remain cool and calm. You have already won the case and that attorney knows it all too well. His only hope is to get you crack and say or do something stupid. Like you said, these tactics are primarily in depositions where they can't be "seen". These kinds of tactics are rarely used in front of a jury because the jury would see them for what they are. In addition, while you can't always depend on it, judges may limit some of these theatrics as your client attorney may object to the witness being abused.

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Take a look at Federal Rules of Civil Procedure, Rule (d)(3)(A) regarding Motion to
Terminate or Limit deposition by witness.

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This all brings to mind a deposition I had in which the opposing counsel made a very big deal of the fact I had not brought exactly some financial data on my expert practice he had requested (I had brought something equivalent and in fact more responsive to his concerns). He then proceeded to politely but persistently ask me the same question over and over, in different ways but always the same question. My answer was critical to his case, and I answered politely but firmly each time. He never got what he wanted, and politely made sure I knew he was not happy about this. I thought he was a bit of a jerk.

Several months later he called me and asked me to work with him on a case. He introduced me to his partners as an expert who "is really good". It was only then that I realized he had been "trying me on for size" in that first deposition. Since that time he and his partners have become regular clients. I have come to understand he is in fact a pretty nice guy, and a well respected attorney. Learning how lawyers play the game is one of the many things I enjoy about my expert practice.

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Ask him why he is high-fiving and being insulting off camera (or whatever) and get it in the record.

Hostile Opposing Counsel - Part 1

In our newsletter, we've been discussing how expert witnesses can handle hostile opposing counsel during depositions. The stories and advice keep coming and are too good not to share. So from the experts who've been there:

I once had an oppposing attorney scream at me 2 inches from my face and spittle peppered my head. I then said "let the record show the opposing attorney," and then described his antics. He was a perfect gentleman for the rest of the deposition.

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I think the best defense with these types of attorneys is to maintain one's composure.

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I think if opposing counsel gets too far out of line, your attorney should step in and say something. That's happened to me only once; my attorney "suggested" that I be treated as a professional or the deposition would come to an end, or he would call the judge. Opposing counsel apologized and backed off.

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Here are some strategies that work well for me. I request that the attorney either repeat a question and ask for clarification (I totally understand the question) which slows the process and helps keep the opposing counseling in check and off point. Another option for me is to start speaking slower, take extra pauses and lower my speaking voice or count to five before answering a question -- sometimes silence is a great leveler. All of this is done as I smile and answer the question in my own way and in my own time. At other times I state that I need to take a break.

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"Why are you harrassing me?" in order to get this into the record. Then, the attorney denies this, but he changes his manner and it puts him off his plan of attack.

Check back for part 2.