Attorney’s Perspective

Attorney’s Perspective

A valued expert witness in any field is one who consistently possesses qualities that render him a vital asset to the litigation team. Those qualities are multiple, and the more you have the more you will be pursued by defense counsel in malpractice matters. Some of the assets important to the preparation and presentation of the case are more significant than others, and the importance attached to each asset may vary from attorney to attorney. Suffice it to say that each is worth addressing and developing if you want to be considered a valued expert witness.

Expert Fees

A reasonable fee schedule is certainly a key element. Understand that the defendant’s professional liability insurer will be mindful of the expenses associated with the defense of a lawsuit. Some may establish an expense budget. In a general sense, expenses may be dictated by the upside recovery potential of the case itself. If the liability component of the case appears one-sided and the money damages at issue are considerable, anticipated defense costs likely will be adjusted upward. However, if the liability issue is expected to be hotly contested and the potential monetary recovery is relatively meager, the expense budget may reflect that assessment. A case can have a tremendous upside financial potential due to the severity of the injury or condition with marginal liability because the connection between the alleged malpractice and the injury or condition is doubtful. Conversely, a case can have clear liability with only minimal damages. Again, defense expenditures will be affected accordingly.

In my experience, malpractice insurers insist on the preparation of a proper and effective defense. Yet litigation costs remain a concern and properly so. That said, preparation of a both rigorous and financially responsible defense remains the insurer’s goal. Therefore, when you begin your expert career, your preliminary value will be measured in part by the cost of retaining your services. If you price yourself out of the market, little work will come your way.

You should establish an hourly fee for document review, conferences (telephonic and in person), report preparation, and deposition testimony. The average hourly fee for expert witnesses is in the range of $250 to $350. Highly specialized or uniquely qualified individuals may command hourly rates at or above the upper end of this range. It may be in your best long-term interest to work at a rate that not only falls within this range but hovers around the lower end of it. If you intend to enjoy the receipt of assignments for years to come, accept the lesser rate and develop your reputation as an effective and affordable expert; the rest will often take care of itself. Remember that another defendant’s attorney in one case may retain you as his or her expert in a different matter. If you possess or are capable of developing the other important qualities (or most of them) that help keep experts in demand, the hourly rates you charge and the volume of work you receive may increase over time. Resist forcing the issue at the start. Remember also that the cost of your participation will be factored into the budget for the case. If your hourly rate or the time you devote to document review or to report preparation is excessive, you may be asked to curtail your assignment, or, worse yet, you may be infrequently retained.

Some experts charge a flat fee for initial document review and report preparation. This approach is generally acceptable so long as the fee (typically $500 to $1,000) is deemed reasonable by the defendant’s professional liability insurer given the amount of time needed to review materials and prepare a report. A flat fee may also be charged for a deposition consuming an established maximum number of hours. This fee generally is paid by the plaintiff’s attorney seeking the deposition, and, if considered reasonable based on the amount of time devoted to the deposition, there will be little objection. Because the precise length of a deposition is somewhat unpredictable, many plaintiffs’ lawyers will not agree to a flat fee when it would result in an exorbitant financial benefit to the expert. For example, if the flat fee is $750 and the deposition ultimately consumes only 1½ hours, such a fee results in a payment to the expert at the hourly rate of $500. If the deposition consumes 3 hours, this translates into an hourly rate of approximately $250, which is likely not objectionable.

Some experts, though not many, engage in the practice of increasing their hourly fee for depositions beyond that charged for document review and report preparation. As a result, the adverse attorney is required to pay more for the expert’s time than the attorney who retained that expert. The typical explanation given is that a deposition is far more mentally taxing than document review or report preparation. Though this analysis may seem appealing, there is a danger. Increasing the hourly fee for a deposition can be used against you at trial in front of a jury. Clever adverse counsel will elicit testimony that you raised your hourly fee for deposition because you understood that the plaintiff’s counsel (and therefore the plaintiff) was required to pay for your deposition time, thereby suggesting that you simply increased your fee to financially damage the adverse party. If your conduct can be portrayed as mercenary or arbitrary, this may discredit your opinions.

Further, you should understand that judges may become involved in establishing expert fees if disputes arise. As you should appreciate, billing schemes that appear to deliberately and undeservedly squeeze the adverse party or result in a considerable economic benefit to the expert are disfavored. If counsel are unable to agree as to reasonable expert fees or if a party’s expert demands an excessive fee, a request may be made of a judge to establish hourly rates for all experts in the matter. Although an expert is not technically bound by the court order that results from such a request, because the expert is not a party to the action, the party who is so bound (and that party’s counsel) will expect the expert to accept the fee schedule established by the judge. If you choose not to (potentially at your own peril if you are a new expert), the adverse party nevertheless will only be required to compensate you at the rate established by the court, and the difference between the court-ordered rate and your rate will be borne by the party retaining you. Frankly, this is a circumstance you should avoid as a new expert. You will be perceived as unduly expensive at best and uncooperative at worst.

The final financial issue concerns your fee for trial testimony. Again, reasonableness is the touchstone. Trial fees, like deposition fees, can be based on an hourly rate and can include travel time. Alternatively, trial fees can be based on a flat rate. Typically, flat rates are established for either a half- or full-day appearance. Half-day fees typically range from $1,500 to $2,500, while full-day appearances (which are rarely, if ever, required) are customarily charged as a flat fee of between $2,500 and $5,000. Your rate should be based on your specialty, the strength of your credentials, and your experience level. As with other expert fees, attorneys (and their clients) will better respond to those perceived as appropriate and reasonable under the circumstances. Generally, there should be no additional charges for mileage, tolls, or parking expenses. However, if you are traveling from out of state and are required to incur unusual expenses such as airfare or hotel charges, it is generally permissible and expected that these costs will be submitted to retaining counsel for reimbursement.

Often an expert will base his fee on lost patient billings. That is, the expert will establish a fee loosely based on monies that otherwise would have been earned in patient billings had the expert not been in court. If, for example, an afternoon is set aside for a trial appearance requiring the practitioner to cancel patient hours, the expert may establish an appearance fee that approximates lost patient billings for that afternoon. Although this approach may have some superficial appeal, its acceptability is largely dependent on the resultant fee charged to retaining counsel. If the figure falls within an acceptable range (such as that mentioned above), this method will not be criticized.

Availability

Interest alone is not enough to succeed as a malpractice defense expert. If professional or personal commitments unduly interfere with your service as an expert, your career will be short-lived. Availability is a multifaceted asset and remains a constant factor in an attorney’s assessment of the value of an expert.

Initially, you must have sufficient available time to conduct a thorough review of the documents supplied by counsel at the time of your retention. You must also be able to complete that review within a reasonable period of time after receipt. Counsel will normally expect you to complete your review and issue a report in approximately 3 to 4 weeks. However, there may be occasions when unusual time constraints imposed by the court require retaining counsel to obtain the report in less than 3 weeks. In some jurisdictions, experts are permitted to testify at trial without the requirement that retaining counsel provide an expert report to opposing counsel in advance of trial. However, timely input from you nevertheless remains important, and the retaining attorney will certainly benefit from your review and analysis sooner rather than later. No matter the state in which the case is litigated, if you can exceed expectations by completing your assignment in less time than allotted, your value is enhanced. Counsel will always appreciate such effort.

You must also be available for a deposition in those jurisdictions where they are permitted. Although it can be scheduled in your office, it is commonly conducted at the office of the retaining attorney. A deposition and predeposition meeting could require that you be available for 3 to 4 hours or perhaps more. They are conducted on a business day and during normal business hours, which means that unless your deposition is scheduled on your day off, you will be unable to schedule patients during that time. An occasional deposition may not prove to be terribly disruptive to your practice; however, as a busy expert, you may have to set time aside for depositions with some regularity. This is an obligation you cannot avoid, and consequently, availability is key.

Finally, you must also be available to testify at trial. Trials, like depositions, require your appearance, and like depositions, trials are conducted during the business day. As a result, you must be able to juggle your practice schedule so as to make yourself available when the retaining attorney deems it best. Of course, there always will be some give and take between defense counsel and the expert as to the date and time of a court appearance so that the expert’s practice is not unnecessarily burdened or the expert unnecessarily pressured. However, if you are serious about expert work, you must be available to travel to court and participate when it might not be professionally or personally ideal to do so. As already noted, your testimony sometimes can be videotaped prior to the trial for presentation during trial if you anticipate absolute unavailability. This alternative may not be available in all cases, however. Additionally, most attorneys consider the videotape alternative to a live appearance undesirable, and as such it is infrequently employed.

Accessibility

Accessibility is to be distinguished from availability. A typical malpractice case in a typical state may be pending for 2 to 4 years. A defense expert will likely be contacted within the first 8 to 16 months of the litigation and will be involved for the balance of the time the matter is pending. Clearly, the expert’s commitment is long term. As a result, the expert must be accessible to the retaining attorney when and if the case dictates.

A telephone conference with defense counsel in between seeing patients or at the end of your practice day may be necessary. Although defense counsel is able to discuss issues or obtain input from the defendant practitioner with relative ease, short-notice conferences with the retained expert generally are a critical component of the defense attorney–defense expert relationship.

Expect there to be occasions when defense counsel or members of the attorney’s staff will need to contact you to discuss matters, some mundane and some not, as the litigation proceeds. In fact, the defense of a matter might be enhanced by your participation in any number of ways. For example, you might be contacted to discuss the substance of records or the plaintiff’s interrogatory answers or the deposition testimony obtained from a party or the plaintiff’s expert as the information is gathered by counsel. On the mundane side, you may be contacted to discuss scheduling concerns, fee issues, or deadline dates. No matter the issue, when the need arises to reach you, you must be reasonably accessible. You must be willing to communicate with counsel or counsel’s office for any number of reasons. If you have your office staff regularly run interference for you, resist getting on the phone, or avoid contact with the retaining lawyer, your lack of accessibility will be duly noted and duly remembered.

Cooperation

This asset is just as much an intangible quality as it is a palpable one. Attorneys sometimes remark that an expert is easy to work with. This is as good an expression of the concept of cooperation as any. In the context of litigation, ease is an elusive notion. Rarely is it part of the pressure-packed world of trial work. Yet if it can be found even in small doses, it is treasured— and it is not forgotten.

In general terms, a cooperative expert is one who reflects the best of the first three values already mentioned. Reasonable fees, availability, and accessibility, as explained above, combine to define an expert who is easy to work with. There are degrees of cooperation, and professional or personal obligations may render you more or less cooperative during your work on a given case. Reputation as a cooperative member of the litigation team cannot be underestimated. Frankly, it is one of the qualities that attorneys often consider when selecting an expert in a given discipline. Ultimately, cooperation without other qualities will not itself make you a valued expert, but it is a great start.

Credentials

Before a jury ever hears you utter a word about your opinions, it will hear about your credentials. Similarly, before you ever get a chance to impress a retaining attorney with your thinking about an issue, that attorney likely will consider the appropriateness of retaining you based on an understanding of your background. Indeed, your credentials will determine whether defense counsel even contacts you. It is essential, therefore, that you prepare a compelling curriculum vitae (CV).

Your CV should be in a form that is easily read and understood. Chapter 8 discusses in detail the creation of an effective CV. For now, simply remember that the CV in this context is a marketing tool. It should be designed as such. The print should be large and legible. Resist using a fancy font style or small font. A document that can be reviewed with ease (that treasured concept) will be favorably received.

Enough said about form. Let’s address substance. Before you are permitted to offer testimony in court, the trial judge must qualify you as an expert. That is, the judge must make a preliminary determination as to whether you should be allowed to offer opinions in the case.

Nonexpert or fact witnesses do not have to be qualified by the court because they are not typically asked (or permitted) to offer their opinions. In a malpractice case, for example, the plaintiff will testify about the condition that prompted treatment from the defendant practitioner, the treatment obtained, his or her current condition, and the limitations imposed by that condition. The defendant also will offer testimony about the relevant facts. Perhaps other treaters will testify, as might members of the plaintiff’s family, friends, or coworkers. The testimony offered by such individuals is factual in nature and commonly focuses only on what was done, seen, heard, said, or thought. With rare exception, fact witnesses do not offer their opinions.

Experts, however, do provide opinion testimony; that is their role. Although they will offer testimony about the facts as they understand them, such comment serves only as a prelude to the opinions that must be based on those facts. (To the extent that the expert’s understanding of the facts is erroneous, the opinions based on such errant information will be compromised and of little ultimate value to the jury who must assess their worth.)

Judges are sometimes described as gatekeepers charged with the responsibility of ensuring that the jury receives opinion testimony only from those who are competent to give it. Consequently, unlike fact witnesses who typically are not called upon to furnish opinions, a proposed expert must provide testimony about his or her credentials and experience so that the judge may assess the propriety of allowing that witness to offer opinion testimony.

In general, judges will permit a witness to testify as an expert with little more than the minimal competence requirements established by individual state law. Such basic qualifications, however, do little to enhance an expert’s value before a jury or further the cause of the litigant on whose behalf the expert has been retained. Unlike judges, who simply seek to ensure that the offered expert is competent to testify, attorneys typically strive to retain the ideal expert for a case. That assessment in the first instance is based on the expert’s credentials. Although a professional license may suffice as a minimum predicate to testifying as an expert in many jurisdictions, state law may require a certain amount of actual practice experience by those who serve as experts. Moreover, defense attorneys will not be comfortable presenting a novice practitioner as an expert at trial. Convincing a jury of the legitimacy of an expert’s opinion is difficult. If that expert is relatively inexperienced, an otherwise daunting task becomes almost impossible. Consequently, if you have been in practice for only a short time, it is doubtful that you will be able to attract much expert work. Generally, an attorney seeking an expert will likely pass on most individuals who do not have at least 10 years of experience in the field. Of course, there may be exceptions, but they are likely to be few and far between. Many trial lawyers believe that at the 10-year mark, a practitioner has an experience base sufficient to offer meaningful comment in most instances. More important, with at least 10 years of experience, an expert’s opinions will not be questioned by the jury simply because of perceived inexperience. Frankly, most trial attorneys’ comfort level with an expert increases exponentially with the number of years the expert has been in practice. Trial lawyers generally presume that juries react the same way.

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May 7, 2016 | Posted by in General Dentistry | Comments Off on Attorney’s Perspective
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