Expert witnesses. Can’t live with them. Can’t live without them. I have worked with attorneys whose biggest problems were with their experts, not with the facts of the case. I have worked with a handful of experts who I really respect and we were more valuable to the case as complementary resources. Unfortunately, I have worked with and against many more experts who did more harm to the case than good.
How do attorneys decide the expertise they need in any given case? Obviously, they first look to experts that have helped them be successful in the past. The next avenue, in my experience, is they look for referrals from colleagues and other trusted experts. That is where most of my referrals come from. Typically, it is a last resort to use an agency to locate experts, especially if the lawyer has to pay a fee for the service.
Once they have picked their candidates, the attorneys have an interviewing technique that has mostly worked for them in the past. This article contains five suggestions to turn “mostly” successful into a return on investment strategy that will likely never cost them more than they paid in fees and in the time they invest working with their experts. In other words, I have proven in my work that experts should more than pay for themselves in the quality and delivery of their services and in minimizing the man hours the litigators must invest in making them a seamless contributor to the case strategy.
#1 – What Expertise Do You Need?
If a case is clearly about a tire that blew out and caused injury or death, a PI lawyer would look immediately for a tire expert and a road hazard specialist. Most cases involving electrical, electronic and mechanical devices, however, typically involve a complex series of seemingly unrelated events that are mitigated by random human intervention. In other words, the symptoms do not necessarily reflect the provable cause. What forensic experts do you need? Do you just shotgun experts in every nuance of the failure until one of them points out probable cause that you can use in your strategy? The secret to minimizing cost and time (ROI) is to start with a consultant whose expertise is processes and systems, not with a cadre of specific experts. By helping the attorney see the entire picture of what random series of events actually came together to cause the tragedy, case strategy becomes much more viable and the number of experts can be limited to just the specialties that will contribute measurable value.
#2 – Who You Gonna Call?
It is human nature to surround ourselves with associates that we relate to and with whom we can communicate well. It is common practice to seek out experts who are considered the best in their field, within the budget constraints of the case. It is typical to look for pages of publications and testimony experience in the expert’s CV. The real ROI is finding a credentialed expert who can write compelling reports in lay terms that contain virtually unimpeachable data and conclusions. The best return is an expert who thrives in the adversarial environment of deposition and courtroom testimony. The shortest path to a successful outcome is to have experts whose persona and interpersonal skills will convince the opposition that they are bulletproof in the content of their testimony and their ability to verbally defend it.
#3 – How Are You Going to Obtain an ROI? Several of my colleagues require a $10,000 nonrefundable retainer just to look at a case file. If you have a multi-million dollar class action suit, they may be worth it. In these days of award limitations, ROI should be a key factor in choosing an expert. Once you have mastered #1 and #2, negotiating a workable fee structure is next. Retainers should be applied directly to billable hours, not an up-front tithe. The preliminary input from the expert should be a candid verbal conversation of whether there are any show stoppers that are immediately apparent from just reading the case files. The billing rate should be based on the successes of the expert, not in the volume of reports they can produce. Finally, expert expenses need not be lavish. A hotel room is a place to work and sleep, not a venue for manicures and massages. First class plane travel from Chicago to Detroit will not enhance an expert’s ability to do their job well.
#4 – Is the expert a team player? Experts that email their report to you and have little or no interaction with the other experts is not a wise investment. Without compromising integrity or jurisdictional rules, experts who collaborate with each other on how their contributions can be complementary and seamless can save huge amounts of time and friction.
#5 – Experts are an Investment, Not an Expense. To get the very best value from an expert, approach their fees and expenses as an investment that must be paid in a timely manner. Many experts are solo practitioners. Attorneys cannot use them to float their case expenses and expect them to do their best work. Offer to pay airline fees for them, rather than waiting 30 or 60 days to reimburse themselves for large out of pocket expenses. If you want a winning team that you can count on, never make money an issue with an expert.
Experts can be your straightest and least expensive path to success or your worst nightmare in sorting through techno-babble to extract useable testimony. Experts can be valuable assets in case strategy or obnoxious Prima Donna’s who sap your patience and time. Choose wisely.