Expert Witness

Expert Witness Directory vs. Expert Witness Broker – Where’s the Value?

There is no doubt that the Expert Witness Broker Model is lucrative.  For the longest time, it was the fallback model for the rolodex and word of mouth referrals.  Indeed, the impetus for starting Experts.com was the lack of an alternative to this fallback model.  The founder of Experts.com, Nabil E. Zumout, Esq., started the company out of sheer frustration with a broker that his firm relied on for years.  It was the broker’s inability to find a specific Mortgage Practices Expert and failure to communicate promptly that drove Mr. Zumout to search other sources, including the Internet.  What he found was immediate, direct contact with highly knowledgeable experts.

In this day and age, it is difficult to imagine a world without the Internet.  Fifteen years ago, however, the information available on the Internet was scattered and accessibility was limited.  As Information became more accessible, the need to have someone broker access to it diminished drastically.  Given that Experts can publish their expertise on the Internet and make it accessible to those who seek it, the more relevant question is whether the Broker Model provides an added value for attorneys that Directories do not?  If so, what is that added value truly worth?

The answer, in most cases, is no they do not.  Any value added early on in the engagement and selection process does not merit the 30% mark-up in fees that is tacked on to every hour billed after the selection and engagement of the expert is completed.  How can you justify a $30,000 commission on $100,000 in Expert Witness fees, especially if you could have found the same Expert for free?

The reason that the Broker Model continues to be successful is that attorneys are slow to change and have not yet been educated as to the benefits of the Directory. It is our job to make them aware, but it is becoming much easier with the new generation of computer-savvy, financially-conscious, Internet-connected generation of attorneys and paralegals in the market.

Many Expert Witnesses and Consultants can be found in both venues.  When a lawyer knows he can find the same highly-experienced Expert in a Directory as with a Broker, why would he ever pay for the Broker’s services?  We cannot speak for all Directories, but at Experts.com, when asked to search for an Expert, we, like Brokers, screen Profiles and CVs.  But, as with Brokers, this is cursory and it always falls to the attorney to do his due diligence in qualifying an Expert.  Anything less would be malpractice.  Again, what is the value the Broker offers that the Directory does not?

From the Expert’s perspective, joining a Broker seems like a no-brainer.  For no charge to the Expert, the Broker will gladly add his CV to its bank of CVs on file.  When the Broker receives a request from an attorney, he can select a few for the case even though many may qualify.  Regardless of the criteria the Broker uses to select the Experts, the Experts are not involved in the selection process.  The Broker model does not allow all of the qualified Experts to put their best foot forward for each case, negotiate their own fees or even have contact with the attorney until the investigation stage.  The true cost for the Expert is lack of control when it is most important.

These are troubled economic times and it simply does not make sense to pay for something that can be had for free. What we offer attorneys at Experts.com is an efficient, effective and economical way to locate Expert Witnesses and Consultants. What we offer Experts is an efficient, effective and economical way to market and broker their own expertise.

AdvertisingConsultantsExpert WitnessMarketing

Expert Witness & Consultant: To Advertise or Not to Advertise?

At the risk of sounding self-serving, we do believe that the following information should be shared with Expert Witnesses and Consultants for their benefit as well.

The age-old argument of whether it is best to advertise in lean or lucrative times has definitely been put to the test these last few years.  Those who understand the marketing industry would tell you that there should always be money in the budget for advertising.

Some Expert Witnesses and Consultants claim that they have so much business that they don’t need to advertise.  To this, great caution is advised – unless, of course, they have the all-knowing crystal ball.  As we already know, business is never static.  The engagements that one may be working on now will come to an end and there is no guarantee that the same profitability or source of income will return.  Confucius was not a lobbyist for the advertising industry, but in his timeless wisdom, he did profess that it was necessary to, “Dig the well before you thirst.”

The same holds true for the lean years.  Yes, budgets will be tighter and reasonably so.  It has been said, however, that if you are not advertising your business, you’ll be advertising that you’re out of business.  The Experts who spend a little to get their names out there have a better chance of making more during hard times.

Internet Marketing:   In his book, The New Rules of Marketing and PR, David Meerman Scott says that, “…Web marketing is about delivering useful content at just the precise moment that a buyer needs it.”  He goes on to say that advertising content must be built specifically for niche audiences, in this case, attorneys, the media, businesses or anyone in need of higher knowledge.  Expert Witness Directories target this specific niche.

Which Expert Witness Directories to Choose:  There are many different Expert Witness Directories out there.  Where to spend marketing dollars is a tough decision. Here are a few things to consider:

  • The Directory Should Be “Free” To The User
  • The User Should Not Have To “Sign In'” To Use The Directory Services
  • The Directory Should Be User Friendly
  • The Expert And Consultant Profiles And Contact Information (and possibly CVs) Should Be Visible To The User
  • The Directory Should Advertise In Legal & Business Venues
  • The Directory Should Not Broker Your Engagement Or Take A Referral Fee*

As it is part of growing and sustaining your business, advertising should be taken seriously and done professionally.  If done properly, it can be an affordable and effective way to help protect against hard times and maintain profitability in good times.

*It is our opinion that Expert Witnesses and Consultants should have direct contact with the client and control over the negotiation of their fees and services.  Fee mark-ups cost law firms more for Expert Witness Services, and, in this troubled economy, they are less likely to pay unnecessary fees.  Experts and Consultants end up pricing themselves out of the market with the mark-ups that brokers impose upon them.  Experts.com DOES NOT broker or mark-up the fees of its Expert Witnesses and Consultants.

ConsultantsExpert Witness

Expert Witness or Expert Consultant?

What is the difference between an Expert Witness and an Expert Consultant?  Not much, really.  The former avails himself to the legal system and is willing to go on record in a court of law. The latter, though he may offer his particular knowledge in this arena, does not testify and is not subject to the more stringent laws of Evidence that are imposed upon Expert Witnesses.

Merriam-Webster defines a Consultant as, “one who gives professional advise or services: expert.” A Consultant must have a special kind of expertise that can be transferred in a relatively short time. For the purposes of a law suit, the Consultant is usually retained early in a case to determine if there is cause of action or a need for an Expert Witness.  The Consultant’s greatest value is that his work is not subject to discovery. For this reason, many attorneys retain both a Consultant and an Expert Witness.  They must, however, be isolated from each other so the Consultant’s advice is not compromised.  A Consultant’s litigation support can be invaluable and worth the cost.  He can aid in preparing complaints, note defenses to a cause of action, and help with deposing the opposition’s Expert Witness.

No matter what the field of special knowledge, it has been said that Consultants should spend three days a week on average doing actual consulting, one day a week on marketing, and one day acquiring new knowledge, so that they continue to update the value that they provide.  Should Consultants market in the same venues that Expert Witnesses do? Absolutely. Since attorneys, businesses, the media etc. are savvy and know that they must do their due diligence, they mainly search for higher knowledge in Expert Witness Directories.  This is the same place that Consultants should be found.  If categorized and published properly, a Consultant’s Listing on an Expert Witness Directory can be an instrumental part of any online marketing budget.  Examples of Consultant Listings.

In closing, perhaps the title of this blog should have been, “Expert Witness AND Expert Consultant,” as there is definitely a place for both in the law.

Expert WitnessTestimony

Expert Witness Experience – How Much Is Enough?

Federal Rule 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.”  How much experience is enough has arisen  as a very controversial issue for Expert Witnesses.  Do more experienced experts give more accurate opinions? Are they more competent to testify?

According to Stanley L. Brodsky, in his book titled, The Expert Expert Witness, “…studies have shown that it is not the amount of experience that is central to doing a good assessment, but rather, it is how skilled the assessor is and how well he or she chooses and uses measures of the issues at hand.”  He goes on to say that if the issue of experience is brought up in a deposition, the argument can be made that many people have worked for years in a certain field yet remain marginal at their jobs.  Others can work for a just a short time and be extremely proficient.

Most people remember the scene in My Cousin Vinny where the out of work hairdresser/ girlfriend, Marisa Tomei, qualifies as an Expert Witness because her grandfather, father and brothers were mechanics and she grew up in  a garage doing tune-ups, engine re-builds, transmissions, brake-relining, etc. Now in theory and movies, this is all well and good and Rule 702 may be satisfied, but the courts have set more stringent limitations on Expert Witness qualifications.

Without going into an in-depth analysis, the Daubert Rule (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)) and it’s progeny established five criteria in determining the validity of an Expert Witness:

1. Has the Expert’s technique been tested?
2. Has it been subjected to peer review and publication?
3. What is its known or potential error rate?
4. Are standards controlling the technique in place and maintained?
5. Is it generally accepted in the relevant scientific community?

This generally relates to the scientific community, but if the testimony given by an Expert Witness does not meet these standards, the Expert may be excluded from the case.  Take, for instance, an Expert who believes he is the most knowledgeable in the field of UFOs and who is called upon to testify that UFO emissions caused an increased rate of cancer in a community.  Unless it is generally accepted that flying saucers exist and that they cause cancer, the Expert’s testimony may be considered “junk science” and the Expert would be disqualified from the case.

Again, it is not the number of years that qualify one as an Expert.  Those new to Expert Witnessing should not be intimidated if they lack experience.  However, they must satisfy the rules governing the admissibility of Expert Witness testimony and have an acute understanding of the issues on which they are to opine.

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Expert Witnesses – Practical Guide to Smart Business Practices

Expert Witnesses have been burdened by issues that hinder their ability to both perform and receive compensation for their performance.  This post is a simple but practical guide to help Expert Witnesses overcome a few obstacles related to their work and help them become more efficient and effective .

Fee Collection. Perhaps the most problematic issue for Experts is collecting fees. There are many ways for this to become an issue. The attorney may fall behind in payments, may want to pay less if a settlement is smaller than anticipated, or may not want to pay at all if the case is lost.

  • Get a written agreement which includes all of the terms and conditions and any consequences for failing to comply. In an article for Expert Witnesses, appellate lawyer, Aaron R. Larson, writes, “Your agreement with the attorney should specify that you may decline to perform additional services if the attorney has not paid your fees for prior services. “ This will allow for more security once the attorney engages the Expert. More time can be focused on the issues of the case rather than how and when the Expert will be paid.

“Hired Gun” Syndrome:  Disparaging remarks made by counsel as to the ethics of Experts Witnesses has always been a bane to the practice. Merriam-Webster’s Dictionary defines a hired gun as, “an expert hired to do a specific and often ethically dubious job.” Credibility should be the number one priority. Here are two ways to protect your professional integrity:

  • Prior to engagement, tell the attorney that your opinions will be based on the facts of the case and your testimony will not be compromised by the attorney’s desired outcome of the case.
  • Perception is everything. If an Expert only testifies on behalf of either plaintiff or defense, than the Expert risks the perception of being a hired gun.

Depositions and Trial Testimony

  • Legal Issues – Have an understanding of the legal issues in the case. Regardless of your expertise, the legal issues may vary from case to case. For example, a Biomechanics Expert may have to opine in a case regarding an injury. This injury may be negligent or intentional. In such a case, it is important to differentiate between the two legal causes of action.
  • Do Not Interrupt – In order to have an accurate record, allow each person to finish before you speak.
  • Silence Is Your Friend – Only answer the questions asked. Never offer more information than is required. If counsel asks a “yes” or “no” question, only answer with a “yes” or a “no.” Do not add fluff to fill the silence.
  • Think Before You Speak ­– Take time to form an answer before you begin speaking. It is better to pause and be comfortable in the silence than to give an unsupported answer. If you do not understand the question, ask for clarification.
  • “I Don’t Know” – If an Expert is caught off guard with new or hypothetical facts that have not yet been analyzed, it is better to answer, “I don’t know,” rather than state an unsubstantiated opinion that can damage the case.
  • Check Your Ego at the Door – Experts are most effective when they are likeable! An Expert is more likely to be persuasive if they are well-liked.
  • Simplicity is Key ­– Make complex explanations understandable.
Expert Witness

Expert Witness Work Product & Communications – Changes to Federal Rule 26

Unless Congress legislates to the contrary, the United States Supreme Court has approved amendments to Rule 26 which will take effect on December 1, 2010.  These much needed amendments affect Expert Witness work product and communications and became an issue in 1993 when the Committee Notes from Rule 26(b)(4) broadened their discovery.  The Committee reasoned that only by disclosure of communications, notes and drafts of work reports used by the expert could the fact finder determine how much of the expert’s opinion was influenced by the attorney.

These Committee Notes put the Expert Witness at a great disadvantage and forced attorneys to practice in murky waters.  Both attorneys and experts would go to great lengths to avoid creating a discoverable paper trail. In an article written for the ABA, Calvin Cheng writes that attorneys would go so far as to, “…prohibit experts from taking any notes, making any record of preliminary analyses or opinions, or producing any drafts of the report.”  It stands to reason that the quality of Expert Witness work product declined. In depositions, behavior by counsel trying to prove the existence of work product became egregious, costly and counter-productive.

The American Bar Association finally called for a change and the following amendments were created:

Rule 26(b)(4) will extend immunity to the discovery of draft reports by testifying expert witnesses and, with three exceptions, to communications between Expert Witnesses and retaining counsel.

Rule 26(a)(2)(c) would require an attorney relying on a testifying expert who is not required to provide a 26(a)(2)(b) report to disclose the subject matter and summarize the facts and opinions that the expert witness is expected to offer.

In the end, this seems like a fair compromise.  No longer will communications, drafts, notes, preliminary findings or opinions be discoverable under Rule 26(b)(4). Those experts specifically retained to provide expert testimony need only provide a final report for discovery.  Three exceptions to this rule apply but they seem fair enough: (1) Communications regarding expert compensation; (2) Data given by the attorney to the expert which was considered in forming his opinion; and (3) Assumptions provided by the attorney on which the expert relied in forming his opinion.

Those experts who are “not retained” but who qualify as Experts for a case need only summarize the facts that support their opinion.  In this way, they are not unduly burdened for their time and yet all parties are aware of what their testimony will include.

Save a few, the amendments to Rule 26 have been met with overwhelming support by attorneys and bar associations.  For Expert Witnesses, it means higher quality work product in a less adversarial arena.  In essence, these amendments are a win-win for both attorneys and experts.


Expert Witness

EXPERT WITNESS CASE REPORTS & CHALLENGES

In the view of this pundit, it never hurts for Expert Witnesses to wear a little Kevlar under their suits. Many Experts do not know that there is a consolidated arsenal of information about them that is available to attorneys. This information can either bolster or undermine an Expert’s credibility.  All Experts should know that this data exists and that they also have access to it, albeit for a fee.

The information is based on public record and is compiled by legal databases using expert witness depositions, testimony and reports, case law, jury verdicts, dockets, briefs, and motions pertaining to the admissibility of expert testimony.   It comes in the form of an extensive, in-depth report which is a cost-effective, efficient way for attorneys to determine the following information on Experts and for Experts to be aware of what they could be up against:

  • Win/lose record when testifying for the Defendant
  • Win/lose record when testifying for the Plaintiff
  • If Expert is Plaintiff’s Expert or Defendant’s Expert
  • If Expert Witness qualifications were challenged and the outcome – admitted or excluded
  • The names of attorneys worked for and judges appeared before
  • The amount of awards won
  • If testimony was mostly in state or federal court

With knowledge as your armor, it is best to leave naivete at the door and enter the courtroom believing it is your battleground. Reports that offer a summary of an Expert’s past experience will not only benefit the attorney, but will prevent Experts from being blindsided by damaging questions of credibility.

Expert WitnessLitigation

Expert Witnesses – Early Case Involvement

An unfortunate practice among many attorneys is to wait until the last minute to retain an Expert Witness.  This has put a strain on the attitude that Experts have toward attorneys. As Expert Witnesses will tell you, waiting to hire them for their services can be detrimental to all parties involved in the case.  It burdens the Expert to perform at his best, sometimes having to process months of information and produce his opinion under unreasonable time constraints.  This is not to the benefit of the attorney or the client.  One Expert we interviewed had this to say,

…frustration mounts, anger sets in, and you quietly curse the Litigators for waiting until the very last minute to solidify your expertise for case leverage. Thoughts of putting the monkey on their backs run through your head, like why not add a penalty for putting me, the expert, into a position of having to now work 15 hours per day to perform at my best. Where do we as experts justify the pressure generated by firms in general, without any consideration of the hurdles we’ll have to run in order to offer professional expertise. Should we tack on additional billable hours as “Overtime” pay, or swallow the enchilada that this is just the way things are done in the expert witness arena, and reconcile that this is your job description, live with it?”

Some attorneys believe that hiring an Expert at the outset of a case may not be cost-effective.  However, in many cases, the opposite is true.  An article featured by the American Bar Association supports the view that the trend is toward retaining the Expert at the beginning of the case.  The authors, Lisa Pierce Reisz, Esq. and David V. Dilenschneider, Esq., in their article entitled, “Early Case Assessment:  Get Experts Involved From Day One” write that, “Many litigators and their in-house counsel clients recognize that this process facilitates better decision-making with respect to whether and how to proceed with a case-ultimately resulting in more certainty and a reduction of costs.” They go on to say that hiring the Expert well before the court-imposed deadline is just good strategy.

Is it possible to put an end to the love-hate relationship that exists between attorneys and experts?  Maybe this is a step in the right direction.

Expert WitnessInsurance

Expert Witness Insurance?

One question on the minds of Expert Witnesses more than ever is, “Do I need professional liability insurance?” That is not an easy question to answer.  Experts have always received  immunity from professional malpractice claims, however, there has been a trend toward allowing retaining parties to sue their Expert Witnesses for negligence.

In order to prevail, Plaintiff must prove that the testimony given is not on par with the Expert’s standard and that Plaintiff would have won the case “but for” the Expert’s negligence.  This standard is difficult to prove and requires a “trial of the Expert within the actual trial.” If found negligent, the Expert can only be held liable for the actual harm caused to Plaintiff. (Mattco Forge V. Arthur Young & Co.).

Avoiding Liability
According to the A-Z Guide to Expert Witnessing (Babitski, Mangraviti, and Babitski), the following tips will help Experts avoid professional liability.

  • Testify Truthfully
  • Be Well Prepared, Careful, Competent
  • Appear As Agreed
  • Maintain E&O Insurance
  • Understand the Daubert Test of Admissability of Testimony
  • Do Not Destroy, Misplace or Lose Evidence
  • Avoid Being “Agreed Upon” Expert To All Parties (Lose Adversarial Immunity)
  • Avoid Conflicts of Interest
  • Seek Legal Counsel In Drafting Contractual Language In Engagement Letter
  • Be Discerning As To Which Attorneys You Work For

With the absence of Expert Witness immunity, we would like to pose the following questions:

1. Should the party hiring the expert be entitled to sue the expert for malpractice?
2. Should the party that the expert testifies against be allowed to sue the expert?
3. Is professional liability insurance something that every Expert should consider?
4. What are the implications of Experts having to carry Professional Liability (E&O) insurance?

This post does not even break the surface of the case law or circumstances under which this topic could arise. It is simply intended to bring about discussion. Please leave a comment to answer the above questions, share any experiences you may have had, or opinions you hold on this subject.

Psychology

Psychology of Negotiation

What is the best way to approach a legal opponent?  Some would say the old “adversarial”  attack is the most effective – to come out with fists flying.  In other words, YOUR agenda as the TKO.  From a psychological standpoint, a little sparring would better serve your purpose.

It is common in many sports to put yourself in the shoes of your opponent so that you can better anticipate their moves.  The same is true for legal negotiations.  According to Dr.  Kenneth J. Manges, PhD, a Forensic Psychology Expert, sometimes it is necessary to, “…Give your perspective a rest and invest yourself in opposing counsel’s position.”  In his article entitled,Psychologically Speaking©: Negotiation 101,” Dr. Manges goes on to say, …”Role playing your opponent will prepare you for their way of thinking, which will in turn get you thinking more clearly about how you have to counter what they have to offer.”

Read Dr. Manges’  Full Article

Dr. Kenneth J. Manges is a Vocational and Psychological Expert with over 30 years of experience. He is certified in Forensic Psychology, Emotional Trauma, Wage Loss, Disability, and Crisis Intervention and is recognized as an Expert in Post Traumatic Stress Disorder