The Se7en Deadly Expert Sins

By Robert Ambrogi Esq
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.

 

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Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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