Well folks- many apologies for the significant time lapse between my last Blog on the expert witness business and today’s report from the field. I hope folks don’t mind, but I’m going to take a step away from work for a minute and fill everybody in…..

I am at that age where like many people I am needed to assist a parent with the next and last phase of their life. And also like many folks that find themselves in this situation the role reversal comes with a great deal of conflict and careful negotiation….something very similar to working with hormonal teenagers.

My mother is 90 years old and while her body is struggling, her mind remains fairly intact, with some loss of executive functions beginning to make their appearance. However, her WILL is as strong as ever (shades of my own future- not wanting anyone to make decisions for me!). And it was exactly that force of nature known as “Pat” that managed to orchestrate getting herself from one end of the country to another this summer. Unfortunately, she was able to convince someone to take her to our family’s summer cottage, which is on an island in the Saint Lawrence River in the Thousand Islands.

I say “unfortunately” because there is nothing on the island beyond a Post Office and a community volunteer library. There are only footpaths and those are fairly treacherous. Anything that is needed must be done off the island, requiring a boat and then a car to drive to your destination- which for a 90-year-old is mostly doctor appointments or the grocery store. Do I need to even say that a 90-year-old with macular degeneration ~GASP~ and highly limited mobility should not operate machinery??

Complicating matters further even on a good day there is highly sketchy internet access on the island, and my mother who has decided that technology is completely over-rated, had no operating system for communication beyond her AARP flip phone. (The flip phone is not a smart phone but is the surviving model of at least six versions that she went through in the last year. She hates telephones almost as much as computers.)

Once her friend returned to Florida, my mother found herself on her own and struggling with even basic maneuvers like walking, carrying items, remembering to eat, take pills and feed her two cats. So…….that led to my relocating up to the river to care-take until I could orchestrate getting her home to Florida and helping to arrange for daily care.

I’m sure that there are several folks out there nodding their heads in understanding and sympathy- I feel your support!! As things stand today, I am back in my own home and lucky enough to find that I have a few expert witness cases on my docket. However, I know it is only a matter of time before I will be on a plane to Florida because as a dear friend said, “You do realize that she is not going to get better, right?” I actually had hoped to bury my head in the sand a bit longer (!), but reality is in front of me and I will deal with one decision at a time and simply try to enjoy the fact that I still have this venerable woman in my life.

Now that I have caught everyone up with my personal life, next week we’ll pick things up where I left off several weeks ago – we’ll talk about staying in your lane and what to do when your research uncovers more problems than solutions. Chao!

18 views0 comments
  • Andrea Dobrin

Hello Fellow Travelers!

In our last discussion we went over some strategies to use to ensure payment for your services. This week we’ll talk about another big pitfall that can impact a new expert witness - finding the balance between your client’s wishes and your expert opinion.

Very few cases are cut and dry. In fact, there have been only two cases in my past where the client I was helping had done very little to warrant their inclusion in the lawsuit. However, in both cases the clients were minor players in much bigger suits that had multiple attorneys and law firms involved. They were both what I would call “add-ons” to the lawsuit, which is fairly common when Plaintiff’s attorneys need to include any and all parties, and will wait for the facts to shake out those that should or should not be involved. While these are dream cases for an Expert, they are rare. Most cases are messy and include things your client did right and mistakes that were made.

When you are first starting out in this business it takes some time and a few cases to “find your voice” (or at least it should – beware jumping out there thinking that saying whatever your client needs is a good strategy!). Finding your voice is simply my way of saying that there is a delicate balance in messy cases between wanting to respond to the needs of your client and not writing a report or testifying to a position that you cannot confidently defend.

One strategy that seasoned experts use is to focus on the areas where they are certain of their client’s position and side-step those areas where mistakes were made. These professionals are also very good at knowing how to deflect the opposing attorney’s questions at either the deposition or trial. For example, some will state they only addressed “X” in their report and are not prepared to present an opinion on “Y”. CAUTION – as you are learning the ropes remember that too many of these types of statements can significantly impact your reputation and value. At best you will look like you had not done your homework, at worst that you are shady. Trust me- neither is good.

Another danger a new expert can face is in writing a report that includes a position that you are not fully committed to. What I mean is, at some point you may be asked to address an aspect of the case in a very specific way. While attorneys know not to direct experts, some do like to offer very strong advice on your report. There is nothing at all wrong with this, in fact it can be helpful.......unless you are not confident about the opinion you included in your report. Be aware - if you are questioned closely about this opinion when you are deposed you WILL. BE. BUSTED. So remember - there is a very fine line from having an attorney ask you to highlight certain facts of a case and directing the content of your report. 99% of attorneys know exactly where the line is, but you as a new expert may not.

My best advice on this subject - use your gut. If what you are writing makes you squirm inside, then take note and only write what you really feel you can go to the mat defending. And how do you do that again? As I have said in many earlier blogs, do your research and from the very beginning be highly responsive and communicative with the attorney you are working with. Know that part of your job is to make sure that your attorney knows where the holes in their case are based on your area of expertise. As the case progresses and you learn more from the various depositions and other evidence that is uncovered it is likely that your position will shift….which is OK! Attorneys understand this, and will often ask that you write your report after the depositions are complete and the other experts have weighed in. The key is in communicating regularly so that once all the evidence is in front of you, you are much better prepared to provide an opinion that is honest, defensible and highlights the aspects of the case you are fully committed to. And most importantly, your attorney will know exactly what you are thinking and why.

That wraps up this week folks – next week we’ll talk about two other pitfalls: 1) what can happen when your research uncovers significantly more problems (YIKES!!) and 2) the temptation of offering opinions outside your expertise.

  • Andrea Dobrin

Probably the most important pitfall and the number one complaint from expert witnesses is not getting paid. Go figure! You’ve put in the work, you’ve spent hours perfecting your report, the attorney you are working with loves your work and has approved your invoice….and then crickets.

Well, while not getting paid can happen on both sides of the aisle (plaintiff’s and defendant’s) it is less likely to happen if:

  • You have a signed and dated Fee Schedule that lays out your billing and payment requirements;

  • There is an insurance company involved with the side you are representing;

  • You have required a minimum “down payment” fee up front; and/or

  • The side you are representing wins their case (well, duh….!).

Even with all of the bases covered one expert witness reported that finding himself on the losing side, the payer (he didn’t state who) refused to pay the invoice for his services, instead he was offered a much lower amount to settle the bill a year after the case ended. Ultimately the expert chose to settle for half of his bill, figuring half was better than none.

In my own example, I completed my research and a report which exonerated the client from wrong doing to the degree that the Plaintiff’s attorney ended up dropping the client from the law suit. I was thrilled – this is exactly the outcome that usually has both attorneys and insurance companies jumping for joy. And yet, the months ticked by in silence. I sent three copies of my invoice, the first following my normal terms for payment, the second when the law firm stepped in to resubmit the invoice and the third after five months had passed without payment. Finally, six months following the end of the case I was paid.

My research has shown that the majority of experts reporting not getting paid or having to accept a lower fee were not working with an insurance company. That said, my own example of an insurance company (you know who you are- GGRRRRRRRRRR) completely ignoring my terms and not paying for six months despite a PERFECT outcome is clearly a cautionary tale. Here’s what I did wrong:

  • I did not have a signature line and date on my fee schedule that required the insurance company to sign off after approving my selection; and

  • I did not require a down payment up front.

Even after my experience I am still stubbornly (stupidly??) resistant to requiring a down payment up front. Why? Because I am still a Newbie Expert Witness. I believe that because I am in the process of building a reputation I need to be cautious about adding elements to my fee schedule that could be a solid turnoff for the decision makers. For now I decided to add the signature and date line to my fee schedule. Going forward I will probably also ask the attorney who selects me if there are any terms under the insurance company that I need to be aware of....for example maybe they only pay six months following the outcome of a case. I have no idea if this will be successful or not, so stay tuned!

As I said, I have not done Plaintiff’s work, but for the handful of people who might be reading this (Hah!) you may remember that in an earlier Blog I said that it might end up being the Plaintiff who needs to pay for the expert witness if they lose their case….it all depends on their agreement with the attorney. It isn’t a stretch to believe that when people are disappointed they aren’t really excited about paying the associated bills so anyone doing this type of witness work should be prepared to always require a down payment.

Some of you may be wondering about the possibility of taking your client (whoever the payer is) to court to get paid……..let’s talk about that next week in round two of Pitfalls!

0 views0 comments