Traveling with a Newbie Expert (14)- Switching Sides
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!