by Robert Ambrogi - Editor
BullsEye Newsletter: May 2006
Envy, sloth and gluttony may have little relevance
to the litigation arena, but lawyers have their own set of sins
they commit in working with expert witnesses, and they can be
just as deadly for a case or a client.
Through our many years of experience working with lawyers and
experts, we have identified the seven most common mistakes lawyers
make when hiring and managing experts. Any one of these mistakes
can have consequences ranging from overspending to a lost case
to malpractice.
Sin 1 – Procrastination
It is one of the most common mistakes lawyers make: Waiting too
long to locate, or once located, engage an expert. Lawyers
have a mistaken belief that they will be able to find an expert
quickly. They fail to consider that finding the best expert
can take time, particularly in a complex case. Once found,
experts must be engaged quickly to insure they aren’t
booked by someone else, including opposing counsel.
Sometimes you inherit delay, taking over a case from someone
else, but most of the time, you can avoid the last-minute rush.
The trick, of course, is to start the search process early.
How early? Start your search as soon as you have shaped your
litigation strategy enough that you can describe your expert
with sufficient detail that you are not sending us on a wild-goose
chase. Even if the precise specifications may change, by starting
your search early, you ensure that you will leave plenty of time
to find the right expert and you increase your chances that the
expert will be available.
Sin 2 – Deficiency
The second sin lawyers commit is to be deficient in the details
about the kind of expert they need. They call us and say, "I
need a semiconductor expert," without more information.
The more we know, the more we'll be successful in delivering
the right expert.
There is a subsidiary sin here: The partner has a good grasp
of the details, but fails to communicate them to the associate
handling the search.
Avoid this sin by carefully considering your search specifications
in advance and clearly communicating them to the attorney or
staff person charged with finding the expert. To the extent you
can, describe the parties, the case theory and scope, pertinent
factual details, potential conflicts, education or experience
requirements, geographic requirements, timeframes and budget
limitations.
Sin 3 – Disregard
The third sin is to disregard the need for an in-depth, preferably
face-to-face, interview before engaging the expert. You need
to satisfy yourself that you will have confidence in the expert
and be able to work closely with him or her.
You should interview the expert thoroughly and, if necessary,
more than once. A face-to-face interview is always best. If that
is not possible, interviewing by videoconference is viable, affordable
and effective. Telephone is satisfactory, if other options are
not practical. In the interview, cover the breadth and depth
of all important criteria before making a decision on whether
to engage the expert.
Sin 4 – Presupposition
Once you have engaged an expert, the fourth sin is to presuppose
that everything is going along well or will turn out all right.
The problem with this approach is that you may find out too
late that all is not as you supposed.
As soon as you perceive a problem of any kind, be sure you point
it out to the expert and offer suggestions for how to improve.
Review and critique every document and draft as soon as you receive
it from the expert and address problems as soon as they arise.
Sin 5 – Detachment
Lawyers commit the sin of detachment by failing to work closely
with an expert on outlines and deadlines and to communicate
their expectations early and often. Detachment can result in
a weak expert report, strained relations and excessive costs.
Avoid this by meeting with and reviewing the expert's work early
and often. Establish a schedule well in advance of deadlines
to work with the expert on outlines and drafts. Help the expert
find the right tone for the report and define its breadth and
depth.
A related problem comes from a lawyer's fear of confronting an
expert if problems do arise. Knowing the expert will soon be
testifying and not wanting to create friction, the attorney may
choose to say nothing.
This only perpetuates and exacerbates the problem. Talk through
problems as soon as they arise. Be frank and address your concerns.
Use good management skills and good communication skills.
Sin 6 – Improvisation
This is the sin of not thoroughly preparing the expert before
a deposition or trial. If the lawyer does not work with the
expert in advance – and far enough in advance – the
expert will not be prepared.
The solution is simple: Establish a schedule early on, allowing
ample time to work with the expert face-to-face to prepare thoroughly
for testifying. Prepare, prepare, prepare.
Sin 7 – Delinquency
Not paying the expert on time is, along with Sin 1, the most
common sin lawyers commit – and the most easily avoidable.
It happens when the invoice sits neglected on your desk, or
when you wait too long to object to the expert's charges, or
when an insurer or client is slow to pay.
Lawyers often fail to consider the expert's circumstances. One
lawyer at a major firm actually said, "I don't feel the
need to pay the experts on time because this is not how they
make their living anyway."
This is unfair to the expert. Worse, it sets up an irritant than
can interfere with your relationship with the expert and affect
the quality of the expert's work.
The solution is simple: Pay experts' bills on a timely basis.
Submit their invoices to your client as soon as you receive them.
If your client's payment is late, look into it. If you foresee
payment problems in advance, let the expert know about them before
you retain him.
Conclusion
Unfortunately, committing these sins is common.
Fortunately, avoiding them is easy. And if you do commit one,
then the earlier you make amends the better off your case will
be.
Act early and decisively in hiring and managing an expert. Inspect
what you expect. Always consider the expert's perspective. Most
importantly, communicate, communicate and communicate.
Bill Hueter is Vice President of Business Development
at IMS ExpertServices. This article is based on a presentation
Hueter gives at seminars and in law firms. At a recent Law Seminars
International program in Philadelphia, 86 percent of those who
attended this program rated it as excellent or good. If you are
interested in having Hueter give this presentation for your firm,
call 877-838-8464.
IMS
Expert Services is the premier expert witness and
litigation consultant search firm in the legal industry. IMS
Expert Services is focused exclusively on providing custom expert
witness search services to attorneys. We are proud to be the
choice of 91 of the AmLaw Top 100. Call us at 877-838-8464 or
visit us at www.ims-expertservices.com.
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