Getting Started

Realize that the defense bar will not necessarily know who you are or that you have an interest in serving as a malpractice defense expert. The onus, therefore, is on you to convey that interest and “market” yourself. Although there may be occasions when an attorney you know will ask if you are interested in malpractice expert work, the likelihood that this will happen is remote. Certainly you should not rely on such a happenstance occurrence if indeed you are serious. Be aggressive. Embark on a marketing campaign that will bring your name and credentials to the attention of members of the defense bar.

Suggested below are various approaches to this effort. Try some or all of them. Some methods are expense free. The simplest and most economic approach is verbal communication. Speaking to people who can help you develop malpractice expert work requires little effort and virtually no expense. The individuals whom you might approach are varied, and all should be considered. Other methods, such as advertisements, mass mailings, and Internet websites, will require the expenditure of funds.

Frankly, it does not matter which method you first employ. You may sequence your marketing plan, or you may choose to use multiple methods simultaneously. The decision as to how and in what order to proceed is purely personal. Do what is comfortable and affordable. Remember, all you need is that first case. If you do well, your reputation generally will grow, as will your work.

Your Malpractice Attorney

If you have been in the unfortunate position of being a defendant in a malpractice case, you already know an attorney who can be of great assistance to you. If that lawyer’s practice is significantly devoted to handling malpractice cases, he or she will have an ongoing need for malpractice experts. Further, the attorney may know other malpractice defense lawyers and, more important, people associated with the malpractice insurance carriers from which defense assignments are received. The fact that you were a defendant in a malpractice case (or in multiple cases) should not in and of itself cause defense counsel to shy away from retaining you as an expert. It is a fact of modern-day professional life that even top-notch practitioners are sued. Simply having been a defendant should not prevent you from becoming a valued expert.

Understand that the response you get from your counsel to your inquiry will be greatly affected by your curriculum vitae (CV) and how well you responded to examination at deposition or at trial by adverse counsel in your case. If your performance was compelling or you were perceived as having expert potential, you likely will be supported in this endeavor.

Though infrequent, there are times when a malpractice defendant is so impressive as a trial witness that he carries the day himself. The trial is won on the sheer ability of the defendant to “wow” the jury. It is unusual that the defendant is a better witness than the retained liability expert, but it happens. In one case, the defendant was a young practitioner whose credentials were only surpassed by his good looks, charm, and communication skills. In aid of his defense, his counsel retained the services of an experienced, knowledgeable, and trial-capable liability expert in the defendant’s field. As well as the expert did in court, the defense verdict was as much due to the testimony of the defendant as it was to that of the expert. The defendant impressed the jury with his credentials, his knowledge, his ability to communicate, and his capacity to respond quickly and convincingly to tough cross-examination.

When the case ended, his counsel inquired of his interest in serving as a malpractice expert for counsel in the future. He was agreeable. His youth prevented counsel from using his services immediately. However, within 3 years of that experience, that attorney retained him for his first case and recommended him to the representatives of the malpractice insurance carriers with whom the lawyer did business. In fact, that practitioner was so capable in his first court appearance as an expert that an attorney representing a co-defendant promptly retained him to serve as a defense expert in another matter he was handling. Over time, this practitioner has developed into an effective and accomplished witness with a reputation as a top-level expert.

In another case, the defendant was an established member of his profession with significant accomplishments to his credit and who had recently relinquished his private practice to become affiliated with a regional medical center in an administrative capacity. The defendant made a strong personal appearance and was amiable and bright. During the trial, which was emotionally charged, effective cross-examination of various expert witnesses for the plaintiffs had somewhat crippled their case, forcing the plaintiffs’ attorney to make an unexpected move. As the morning session opened on the fourth day of trial, everyone had anticipated that another in a series of the plaintiffs’ experts would be the opening witness. Although the defendant was prepared to testify, it was expected that he would testify after the plaintiffs finished their case, rather than as a witness during the plaintiffs’ case-in-chief. However, the plaintiffs’ attorney called the defendant to the stand as his first witness of the day. In an effort to catch the defendant off guard and recapture the momentum of the trial, the plaintiffs’ attorney called him unexpectedly and attempted to discredit him; but the plaintiffs’ attorney was unsuccessful. The defendant seized the moment and controlled the examination and the examiner. In fact, the plaintiffs’ attorney’s gamble failed miserably. The defendant was anything but rattled by the surprise attack. Instead, given an early opportunity to testify, the defendant clearly described the relevant events and calmly explained his reasoning for decisions made. Ultimately, a defense verdict resulted.

In light of the defendant’s performance, his defense counsel subsequently retained him as a defense expert in another matter and recommended him to counsel’s insurance carrier clients. The practitioner thereafter repeatedly served as an expert for many other malpractice attorneys.

These are but two examples of where a defendant in a malpractice case has turned an unpleasant lawsuit experience into a positive opportunity. You can do the same. Even if your lawyer does not approach you about serving as a malpractice expert, that does not mean that you are incapable of doing so or that your lawyer will not support you. Initiate conversation about it and express your interest in expert work. Ask your attorney to inform other malpractice defense lawyers of your availability. More important, ask him to communicate your interest and transmit your CV to the insurance carrier representatives with whom he deals. A positive endorsement from an attorney who routinely interacts with malpractice insurance companies will be of immense help in developing expert work.

Liability Carriers/Brokers

Akin to speaking to your malpractice attorney is communicating directly with your malpractice carrier or broker. These contacts can be a valuable source of expert work. If you have been a defendant in a malpractice matter, it is likely that you have already interacted with a representative of your liability insurance carrier. If so, a telephone call advising of your interest in doing malpractice work is a good first step. Follow up with a confirming letter including a copy of your CV. Invite the representative to contact your attorney, or, better yet, also call the attorney and ask that he communicate directly with the representative about how well you performed in your lawsuit.

Also consider contacting professional liability carriers other than your own. Communicate with companies that provided coverage in the past, those that you have learned of while attempting to secure coverage, and those that have solicited your insurance business. To obtain a complete list of insurance carriers authorized to conduct business in a state of interest, contact that state’s insurance department. To secure a more tailored list, contact the state’s dental societies. National, state, and local specialty organizations should also be contacted, as they likely can provide carrier information as well. Once you have identified the carriers you intend to pursue, telephone each company’s vice president of claims or claims manager and transmit a letter of introduction with a CV.

Insurers sometimes write to defense counsel about a practitioner interested in serving as a malpractice expert. That mailing usually contains a copy of the practitioner’s CV and an endorsement from the carrier. When you contact a carrier, you should ask how to secure such an endorsement and a related mailing to defense counsel. You should pursue this avenue in person to the extent you have the time to do so. A face-to-face meeting with a carrier will likely have a greater impact than a telephone campaign.

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