Preventing and Dealing with Your Expert Witness Crisis
By Steven Babitsky, Esq. and James J. Mangraviti Jr., Esq.
©2011 SEAK, Inc.
Many expert witnesses/groups/firms/companies and individuals have built valuable businesses with substantial annual incomes. These individuals, groups/firms are valuable assets that need to be protected from crisis and risk in a proactive manner. Many costly crises at expert witness practices can be anticipated and prevented.
An expert witness crisis audit with specific recommendations can reduce risks, avoid crisis, and improve best practices.
The Expert Witness Crisis Audit should address key issues such as:
-marketing and advertising
-fee setting, billing, and collection
-practice management forms
-handling of phone inquiries
-likely attacks from plaintiff/defense bar
Case Selections and Screening
Here the types of cases selected can be reviewed to ensure that they:
- Are in the firm’s area of expertise
- Pay well
- Help, rather than hurt the reputation of the firm, and
- Help build the brand of the firm
Conflict System Check
A review of the conflict checking system can be undertaken to determine if it is thorough and bullet-proof.
Marketing and Advertising
A complete review of all marketing and advertising should be done to make sure it:
- Is professional
- Is truthful and not overstated
- Does not create potential problems during of cross-examination
- Helps, rather than hurts, the image of the firm
The firms Daubert history should be reviewed (if any) to determine the likelihood of future Daubert challenges. The industry Daubert history can be reviewed as well. Likely areas of Daubert vulnerabilities should be identified. Recommendations to reduce Daubert challenges should be made.
All aspects of the firm’s practice should be reviewed to determine the image the firm:
- Would like to project,
- Is actually projecting
The practice management policies of the firm need to be reviewed to determine potential weak areas that can be improved.
All aspects of case intake should be reviewed from the initial call/contact to the signing of the retention agreement and receipt of the retainer.
The document retention/storage policy needs to be reviewed to see if it complies with best practices.
Fee Setting, Billing & Collection
The fee setting, billing and collection history should be reviewed to determine:
- How often bills are paid late or not at all
- If fees are set in an optimum fashion, and
- How billing and collection procedures can be improved
Practice Management Forms
The forms (if any) should be reviewed to see if they are complete and can be expanded and improved.
The firm e-mail policies need to be reviewed to determine:
- If e-mails are being sent which open the firm up to an attack, and
- The e-mail retention policy is well thought out and implemented correctly
Handling of Phone Inquiries
Phantom calls should be made to the firm to determine how the staff handles initial inquiries from potential new clients.
The report writing system should be reviewed to determine:
- The quality control system in place
- The amount of input from retaining counsel
- The vulnerabilities of the firm to cross-examination, and
- The quality of the reports generated.
The firm’s practices need to be reviewed to determine if they are in compliance with ethical best practices and to determine potential vulnerabilities.
Likely Attacks from Plaintiff/Defense Bar
The firm’s practices should be reviewed to determine the potential for serious and sustained attacks from the plaintiff/defense bars.
Specific written advice should be given to improve practices in all areas and to reduce all potential areas of vulnerabilities identified.
A thorough expert witness crisis audit should review and analyze:
- past problems, threats, conflicts
- trends in your specialty/area(s) of expertise
- specific areas of vulnerability and provide recommendations for reducing the risks inherent in these vulnerabilities
What to do in time of crisis?
Despite the expert’s best efforts, he may be drawn into an expert witness crisis. How he reacts and deals with it may determine the future success or failure of your expert witness practice.
- How serious is the crisis?
- What can the results of the crisis be?
Best case scenario?
Worst case scenario?
- How will you respond to the crisis?
Time to cool down
Who to look to for assistance
Is there a way to put out the fire without making it worse?
- How, when, and why to get your own lawyer
- What can your attorney do for you with:
Allegations of ethical lapses?
- How and when to settle
- Assessing your likely chance of success
- What will the likely impact be on:
Your professional reputation?
Your ability to successfully testify as an expert?
Future clients and business?
- How and what do you need to tell current clients about your crisis?
Impact of telling them
Liability for not telling them
- Surviving and thriving in time of crisis
- Lessons to be learned
The reputation of your expert witness firm, group and company is of paramount importance. Crisis management and prevention is the best way to protect your valuable asset.
Steve Babitsky, Esq.
James J. Mangraviti Jr., Esq.
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.