Preventing and Dealing with Your Expert Witness Crisis

Preventing and Dealing with Your Expert Witness Crisis

By Steven Babitsky, Esq. and James J. Mangraviti Jr., Esq.
©2011 SEAK, Inc.

Introduction

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.

Prevention

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:

-case selection/screening
-conflict checks
-marketing and advertising
-Daubert vulnerabilities
-image issues
-office management
-case intake
-document retention
-fee setting, billing, and collection
-fee agreement/contracts
-practice management forms
-email policies
-handling of phone inquiries
-report drafting
-ethical pitfalls
-likely attacks from plaintiff/defense bar
-preventative measures

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

Daubert Vulnerabilities

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.

Image Issues

All aspects of the firm’s practice should be reviewed to determine the image the firm:

  • Would like to project,
  • Is actually projecting

Office Management

The practice management policies of the firm need to be reviewed to determine potential weak areas that can be improved.

Case Intake

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.

Document Retention

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.

E-mail Policies

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.

Report Drafting

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.

Ethical Pitfalls

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.

Preventative Measures

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.

Crisis Management

  • 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?
    Daubert issues?
    Professional discipline?
    Counseling
  • 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
  • Conclusions

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.
SEAK, Inc.
stevenbabitsky@seak.com

James J. Mangraviti Jr., Esq.
SEAK, Inc.
jim@seak.com

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.