Search

Well, here we are moving into February and all I can see when I look out the window is the same “blanket of snow” (now at least two feet deep and more on the way) I’ve been looking at for weeks now. Lucky for me I received an emergency call* from an attorney with an interesting challenge. After their previously selected expert had to unexpectedly withdraw, the attorney needed someone willing to step in quickly as trial dates were fast approaching and the opportunity to submit expert reports was at hand.


As I was returning the attorney's contact, I had a moment’s hesitation- the case they wanted to discuss with me would be representing the plaintiff's side of the table, not the defense work that I have done for the last four years. So why? Why was I concerned about doing plaintiff's work rather than defense?


In my opinion, (and please- for the handful of people who are reading this - it is just my own opinion- put away your verbal hatchets!) there are a couple of good reasons why a new expert should proceed carefully when accepting plaintiff's work.


First, keep in mind that plaintiffs are often really, really angry, frustrated, and/or hurt. These are people who feel deeply that they have been wronged, or their loved one has been wronged. With emotions running at full steam, they can become completely focused if not obsessed with seeking justice. (Really good plaintiff's attorneys know how to tap into that emotion - "I'll make them pay!" is a pretty familiar phrase to those of us in Cleveland.)

So why is that something to be wary of? Well, an emotional, angry client may not be a client able to set aside their feelings to focus with their attorney on where their case is its strongest. To effectively present a case, their attorney needs to anticipate what the defense is going to say or present. And the defense usually has the advantage of not only deep industry knowledge, with all its rules and regulations, but they also have extensive access to records and any staff members who may have been involved. Keeping a cool head while counteracting those advantages can be a very hard task for someone who has gotten this far in the process because of their anger.


My second and more fundamental concern is financial. An expert witness on defense is typically paid through the company's insurance, whether the case is won, lost or settled. This is because, once the attorney has selected an expert, they forward the information to the insurance company who ultimately approves the choice, and accepts the cost. In other words, this is a deep pocket.


On the plaintiff’s side, things are a bit different when paying for an expert. Typically, the law firm will cover the cost and reimburse their firm from monies received after winning the case. Less typically, it may be an arrangement where the plaintiff themselves must pay for the expert, along with the cost of conducting depositions, the court reporter, or any number of the expenses created by litigation.


So, what happens if the plaintiff’s attorney does not win the case or settle it with a sizeable award? Well, technically, plaintiffs must now cover the costs of the expert. And that said, a disappointed plaintiff might not want to, or even be able to pay the expenses for a lost case.…….which sums up the main reason why I have been cautious.


So, what advice do I have for a newbie expert who is contacted to work on the plaintiff's side? Well, obviously the first step is to start with the merits of the case and determine whether you are the right expert and feel you can effectively support your client’s position. For me, after I had listened to the attorney’s description of the case, it was evident that their position was very strong. I knew that despite my lack of familiarity with the plaintiff’s side, my experience and proficiency on defense would provide me with a significant advantage in identifying the mistakes made by the agency. Box checked!


Once satisfied with the merits of the case, for me the next step I took was to research the law firm. I needed to get a feel for who I was working for and whether it would be a good fit for us both. As it turned out, the attorney who contacted me works for a prestigious firm that operates on the east coast. I read a number of articles about the firm and definitely had the sense they are well established, conservative and had successfully handled a number of high-profile cases. Box checked!


The last recommendation I have for a newbie working on the plaintiff’s side is to confidently find out who, when and how you will be paid for your services. And don’t forget to get it in writing! For me, I have included an area on the bottom of my fee schedule, where if I am selected, I ask that the attorney sign and date the document before returning a copy to me. The plaintiff’s attorney returned my signed document within an hour of my submitting my fee schedule. Final box checked!


And so, with all of my concerns assuaged, I agreed to take the case. I turned in my finished report just three weeks after receiving all of the documents and honestly, I’m feeling it was some of my best work. Now that I have experience with plaintiff’s work, and a clear plan on assessing and managing any concerns, I don’t think I’ll hesitate quite so much the next time I am called to serve!

*I was found through my advertisement in the SEAK expert witness directory. I’ll talk about some of the various marketing options for experts in a future blog – I’ve certainly made some mistakes, and it's important to be CAREFUL with your money!

7 views0 comments

Well, sorry folks- it has been two months since I could get back to any type of “normal”. For those of you out there who also have been left with the responsibility of a parent’s estate, you have my profound respect and sympathy. It’s an amazing amount of work!


All that aside, I was able to complete one of my cases during the last couple of months as well as start a new one. So, I was at least not completely unproductive on the business side of things. In fact, a timely discussion with the attorney from my last case falls directly in line with where I left you all- staying in your lane and what to do when your research uncovers more problems.


It is fair to say that I have a deeply analytical side to my personality. It is probably one of the things that appealed to me most about taking on the work of an expert witness- I can really relate to the investigation process as I had a steady diet of investigating incidents for several years in my career.


In my industry, social services, there are an unending number of documents. So, much like the medical field where everything is captured for the record, social services agencies must memorialize their work, and it is often duplicated in several different places.


When first reading through a case (I like to start with the Complaint) I will immediately write down all of the documents that I think will be relevant to my review. Then, working with the attorney I will start to go through whatever information is provided that has already cropped up through discovery or in the depositions. Most of the time I find that what I am looking for has not yet been pulled for the attorney’s review. And that is usually because neither side knows specifically what to ask for (which is why pulling in an expert as early as possible is the smart way to go).


Once I have reviewed what was provided and asked for any missing information, what happens if I uncover what might be critical information that doesn’t technically fall under my area of expertise, but is within my experience? Is this a good thing, or a bad thing?


Let me give an example from my own experience. For about eight years I administratively oversaw four divisions in three separate, but affiliated behavioral health corporations. These divisions included Risk Management, Quality Assurance, Human Resources and a non-profit Pharmacy.


Each of the divisions involved understanding a wide range of rules and regulations, but the daily exposure to overseeing the pharmacy led me to a fairly good understanding of psychotropic medications, types, dosages and side effects, for both kids and adults. Does this make me an expert? No, but I do know enough to have a very strong interest in the influence of these medications on the cases I am reviewing, particularly as both individuals with Severe Mental Illness and/or Intellectual and Developmental Disabilities tend to be prescribed extraordinary numbers of drugs at often extraordinary dosage levels.


When recently faced with a confusing death case, I took a detour into the medical reports, autopsy documents and nursing notes. Knowing what I do, I saw that one of the medications was prescribed at double the maximum recommended dosage. In addition, the medication was combined with another that when taken together could produce significant medical side effects.


What to do? I am not a pharmacist and could not touch that information with a ten foot pole, (I have zero desire to be skewered by opposing counsel and experts). What I did do was bring my suspicions to the attorney, who listened thoughtfully and then reminded me to “stay in my lane”. Was I offended? Not really. The advice was sound and a timely reminder, HOWEVER, I did want to impress on this attorney that seeking an expert in the medical field could be advantageous. (They did end up following this advice from me- which proved to be instrumental- so hooray! But one more important comment - I did not bill for the time I spent looking at the information that technically was not in my purview - so beware of the curious mind- you might lose both time and money.)


It is a fact that many of us who become expert witnesses have had lengthy careers that have crossed several industries and organizations. That exposure provides a wide range of knowledge and experience….but not necessarily expertise. Knowing how to stick to your area of expertise is critical however, it is never a bad thing to use your experience to assist your attorney. Just be careful not to spend too much time as it is mostly unbillable, and DO NOT address these opinions in your report, no matter how tempting.


Welcome back to the journey Newbie Experts!

7 views0 comments

Six long weeks ago I took a break from my normal blog postings to talk about my mother Pat's sudden caving in to her advanced age of 90. This resulted in my need to stay in upper-state New York and become her caregiver. By Labor Day I breathed a sigh of relief as I managed to get her (and her cats!) back to Florida and back to her many, many, patient doctors.


Well.....two weeks later I joined her again after a hospitalization for breathing issues turned into a diagnosis of multiple terminal cancers. What a shock! Over the last forty years my mother had spent a small fortune on vitamins and supplements, all with the goal of making it to 120. I think she felt seriously cheated by all her those vitamin companies she'd kept on speed dial!


My sister Gayle grabbed a flight from Oregon and we set up shop here in Florida. The Rich girls were all together again- each talking over the other and vying for control over the decisions....with Pat winning of course (some things NEVER change). My sister and I found a home senior's care system and a local hospice group after she signed a DNR and determined would not seek any medical support beyond pain control.


In typical Pat fashion she set about calling relatives, friends, acquaintances, service companies, pharmacies, former doctors, former dance partners...you name it. She was strangely and incredibly delighted to announce her eminent death (I mean really...what do you say to that??) and got to relish shocking as many people as possible..and of course forcing them into telling her how wonderful she was. It was hysterical. I can honestly say that I have never, ever heard anyone (even former Presidents) take as many victory laps as Pat. At one point my 93 year old aunt unfortunately interrupted her very early in the call and got a chewing out - "I have something to say- be quiet!!" I am still cringing.


While Mom was busy telling her final story to one and all, my sister and I were working 24/7 to direct the parade of people, arrange for pest control (oh yes- a lovely infestation of German Roaches that would stop to salute as they marched through the kitchen) and clean, clean clean.


Mom held court for two weeks, enjoying all of the care and attention, especially from the senior care home workers and the hospice staff who would allow her to start her story with "I was born in 1931...". All declared that she showed no signs of moving to the light and could likely survive another six months. Bolstered by this report, my sister and I helped our mother dress and the Rich girls made our way to a favorite restaurant where we drank too many margaritas, told all of our best stories to the waiter and reminisced about our father for around two hours.


Just one week later, and probably again taking full control over all decisions, my wonderful, irascible, vociferous mother suddenly took a very serious turn for the worse. And, after finally caving in to placement in a hospital bed in the living room, her drive to remain solidly on earth for several more months sputtered out. Three days later, with my sister and I continually checking on her (she was giggling off and on!) Pat fell asleep and slipped peacefully away.


We all lose our parents at some point in our lives, it is a fact. But what is harder to explain is the sort of odd hole that is left when your parents are gone. I don't think I had quite realized how much space, both mental and physical, I had devoted to my mother. How that space will gradually fill is unknown, but what I do know is that there was no one, ever quite like my mother Pat. Good, often bad, but singularly Pat.


I promise once again to pick up the gauntlet on my normal blog story after my sister and I get through the mountain of paperwork that accompanies someone's passing. Honestly- this must be a trick created specifically to shorten the grieving period......... Until then, if you still have a parent in your life treasure the time you have left.





6 views0 comments