Forensic Companies Retooling
By: Steven Babitsky Esq. and James J. Mangraviti Jr, Esq.
© SEAK, Inc. – April 2008
Forensic companies across the United States are facing an increasingly severe problem, namely: the shortage of experts with experience in testifying at deposition and trial. These companies include forensic: accounting, computer, engineering, and valuation, as well as many other forensic specialties. The forensic companies face pressures from several sources.
The clients of forensic companies/firms generally want the most experienced forensic experts to write and sign the reports and testify at deposition and trial. Some of these clients are not overly price sensitive (e.g. clients involved in intellectual property litigation).
When you are suing or being sued for tens of millions or hundreds of millions of dollars, the last thing you are concerned about is the cost of your expert witness. It is not uncommon for these expert witness assignments to run $250,000 – $500,000 or more. On the other hand, forensic engineering firms face more competition and price sensitivity, even in larger construction defect cases.
Clients may not be receptive to the use of an inexperienced expert to testify on their behalf. These clients do, however, accept and in some cases encourage experts without trial experience, who bill at lower rates, to “work-up” the files. This work typically involves reading documents, running numbers, on-site investigations, summarizing depositions, and other time consuming work.
Many forensic firms follow the pyramid approach (e.g. a few experienced partners who sign the reports and do all or most of the testifying for the firm). These experienced experts face severe pressures, including:
– Signing off on reports where the bulk of the work is done by others,
– Testifying at deposition and trials numerous times per year, sometimes involving extensive travel, and
– Not having the complete knowledge of the case at hand, including all of the crucial nuances.
These experienced experts have been forced to justify their right to testify in the face of Daubert and other challenges. In addition, the more frequently they testify, the more they become a target to be eliminated or compromised by opposing counsel.
Additionally, the firms who have only a few experienced experts run into severe problems when these experts are conflicted out, busy with other cases, or become ill or retire.
Experts at Firms
The experts at the firms who have little or no testifying experience can become disillusioned with never seeing a case through to the completion. These experts may lack confidence, become frustrated, complacent, and may eventually leave the firm to seek greater opportunities at other firms.
Forensic firms are now dealing with the above problems in several ways:
1. Mentoring the least experienced experts,
2. Gradually increasing the responsibilities of the least experienced experts,
3. Convincing clients that it is in their best interest to let the experts who have worked up the files and have intimate knowledge of the case to sign the reports, and in some cases, testify at deposition and trial, and
4. Training the experts in the art of report writing and testifying so they are ready, practically and psychologically, to assume more responsibility at their forensic firms.
Forensic firms that take the above four steps are well on their way to insure the long-term survival and success of their firms.
About the Authors
Steven Babitsky and James J. Mangraviti, Jr. are both former litigators who have trained thousands of expert witnesses. They are the co-leaders of the annual National Expert Witness Seminar, have co-authored numerous texts on expert witnessing including The A-Z Guide to Expert Witnessing, Cross-Examination: The Comprehensive Guide for Experts, National Guide to Expert Witness Fees and Billing Procedures, Depositions: The Comprehensive Guide for Expert Witnesses, Writing and Defending Your Expert Report: The Step-by-Step Guide with Models, How to Become a Dangerous Expert Witness: Advanced Techniques and Strategies, and The Biggest Mistakes Expert Witnesses Make: And How to Avoid Them and have co-produced several educational DVDs for expert witnesses. Steve and Jim currently serve as principals of SEAK, Inc. a national continuing education firm specializing in training, consulting, and services for expert witnesses of all specialties. For more information please visit www.testifyingtraining.com.