To the editor,
To Michael Casey’s excellent expert-witness article in the March 2003 Reporter, I can add some experiences, mostly on the business side, that may be of use to our Membership.
If you are to be engaged by the plaintiff’s attorney, and the defendant is a colleague who is an acquaintance, there is obviously a dilemma of whether or not to take the case. Of course, you inform the attorney. Usually the attorney does not want to look for an expert outside your ASHI territory, so this can be an issue that one frequently faces. To decide, I consider the following factors.
In my opinion, (most) plaintiffs deserve competent, professional representation, therefore their attorney deserves a competent, professional expert. If not you, who?
Can you recommend someone who is competent, but not acquainted with the defendant? If not, your expertise may result in an equitable disposition of the matter.
Your assessment of the facts might lead you to believe there is no cause for action, that the grievances are excessive or that the economics of the damage do not justify the expense of an action.
Whether or not you take the case, the defendant is already saddled with his/her insurance deductible. You will not cause any additional direct financial damage to the defendant, although there could be an impact on future premiums.
Lastly, there is perhaps a moral obligation to raise the standards of the profession. Those who do not meet the current standards deserve to be encouraged to do so or to leave the profession.
My written expert-witness agreement is with the attorney or the insurance company and not with their client or policyholder. Sometimes, the would-be claimant calls for a technical evaluation. But if that proceeds to a claim, it is a separate contractual arrangement with the attorney, who gives the marching orders.
If my client is an attorney, I have him maintain a credit balance with me. This means obtaining an advance sufficient to at least cover any phase of service that can be applied to the last billing or to obtain an advance for each phase of service, as each arises. Above all, I do not want to have an account receivable when on the witness stand. The jury does not need to contemplate whether my receipts are dependent on my testimony, as the opposing attorney will often ask if I have been paid.
Opposing attorneys will often ask what percentage of my income is due to serving as an expert, with the objective of possibly painting me as a “gun for hire.” My take is that if that figure is less than 15 or 20 percent, I’m safe. I believe it is essential to have an accounting system that allows for expert services to be segregated so that I can accurately answer this question. It is also useful that the accounting system allows the separation of investigation from report writing and from testimony, which allows tailoring of the answer to the question, as well as better financial management.
Well done expert services result in little testimony. Attorneys are accustomed to billing in 10ths of an hour and to providing blow-by-blow details.
I find it useful for my timesheets and accounting system to accommodate this.
I always ask the attorney whether documents received for review can be marked up.
If not, post-it™ notes are a reasonable fall-back.
After reviewing any or all of available documents and the site, I may conclude I can’t be a supportive witness. I may withdraw; the attorney may terminate me; or I may continue as a consultant in the matter as the attorney modifies the game plan. In any case, it has been billable. There is no need to review material on a contingency basis, despite come-ons from plaintiff contingency attorneys, such as “take a look at the material and tell me what you think.”
Reports and testimony should not, without cause, contradict anything the expert has published or is in the public record, such as previous trials. Diligent opposing attorneys will have researched the expert’s prior views.
Kenneth Kruger, RA, PE
Kruger Kruger Albenberg