Depends who you ask. But 71% of corporate counsels, and 61% of private practice lawyers agree that pricing and fees is the #1 issue facing the legal industry, according to the recent Lex/Nex survey. Undoubtedly fodder for a blogosphere feeding frenzy, this commissioned survey also shows that most (77%) private practice lawyers believe their clients are too focused on cost.

The impact of these, and other noted trends, has a serious impact on the expert witness industry.

Many of our experts we place with clients are new to the experience, and have never testified or given a deposition before. Given that many a deposition will be in a hostile, or at least oppositional manner, preparation is critical.

One of the most common questions I get is: "What should I expect?"

Well, every deposition will be different, but as a starting place to prepare, here are five good questions you ought to be able to answer, as posted in the Trial Lawyers Resource Center web page.

Who engaged you on this case?
What did the ask you to do?
What did you actually do?
What conclusion and opinions did you reach, and what do you intend to testify to at trial?
Were there any other test - analysis or things you could have done that you would have liked to? What were they?

Clearly, there will be case-specific issues as well, but these are a good indication of what an opposing attorney might ask you.  

Another good suggestion they have is to draft the 10 most critical questions that the opposition may ask.  Ask yourself how to answer these questions, or better yet, have your client or a colleague ask them, perhaps even in a confrontational way.

"What litigation trends should I expect from 2010?" one of my favorite-to-work-with experts asked me a couple of week back. Its was a question I had been hearing a lot lately, and I had been asking it almost as often. Here is what I see as some of the trends in the expert witness industry.

For 2010, I see three major trends in the expert witness industry: Earlier identification and retaining of experts,  increased sensitivity to cost by clients, and an increased amount of litigation in environmental damages, financial misconduct, and in the area of labor and employment. What does this mean for expert witnesses?

First, there will be a greater amount of time between the search/identification/interviewing/retaining of experts by clients on the one hand, and the actual start date of experts, on the other. Experts will need to be able to work within a longer time frame, requiring careful expert-client coordination on invoicing.

Second, and we saw this more and more last year, Clients will be much more cost-sensitive, requesting budgets from experts, relying more on video conferencing and other cost saving measures, and taking a harder line on negotiating rates. Experts who include this cost sensitivity in to their marketing and presentations will have an advantage over their competitors.

Finally, based on industry reports and expert observations, we expect to see an increased demand for expert witnesses in many areas of litigation, perhaps particularly in environmental damages matters, in employment and labor disputes, as well as in continued (and increasingly broad) litigation from the fall-out of the financial collapse of 2008-09.

Table Group Group membership can help you take full advantage of the latest industry trends, with profile reviews, links to conferences, and marketing ideas. Just reach out to our skilled expert services coordinators, who are standing by to assist. 


  

Expert Witnesses usually have good advice. And any expert witness who has ever worked with a law firm client, always has some advice on how the working relationship could have been better, or so I have observed over years of conversations with expert witnesses.

Recently, while reading about an ABA seminar called "10 Ways that Attorneys Kill Their Own Experts" it occurred to me that it might be great for experts if we, as an industry, could share the wisdom of the industry with each other.

Ever suddenly have a deadline moved up? Or maybe your client didn't get you all the evidence in a timely matter? Or had your report ignored? Or stiffed you on an invoice? How did you deal with it, and more importantly, how have you learned to avoid these pitfalls?

Maybe you have a list of the 'Three most important things to tell a new lawyer" before they start working with an expert witness?

Lets hear your advice on the best practices for successfully working with lawyers. We will post the replies here, where expert witnesses new to the field, and seasoned veterans alike, can benefit from them.

I look forward to your input, and sharing that wisdom widely.

 

At Round Table Group we believe there is more to getting retained as an expert witness than competitive expert witness billing rates, discipline expertise, stunning resumes, and sterling references. There is also the critically important expert-client agreement (or retention letter) that defines the scope and expectations of the expert-client relationship. This document describes issues such as deadlines, communication preferences, invoicing processes, and the very important topic of confidentiality.

Experts are a critical asset in winning cases, we know that. But as Gregory P. Joseph points out, the issues of confidentiality and discovery pose a challenging hazard to experts that they must be aware of. However, with just a little foresight and preemptive precautions both experts and clients can avoid this potential pitfall.

Joseph's article,  titled "Engaging Experts" nicely explores the issue of protecting confidential information. And while he is writing for an audience of lawyers, his point on confidentiality and protecting the case, and the parties involved with the case (including experts), is very well taken, and could be adopted by experts as well.

I have suggested in CLE presentations that "thorough and clear pre-retention communication, leading to carefully defined and agreed on terms of cooperation and expected outcomes" are critical to a healthy and successful expert-client relationship. Mr. Joseph's article parallels that idea.

With his permission, I have included two paragraphs he suggests as a model for client-expert retention agreements.

The heart of the form retainer letter consists of the following two paragraphs, which are analyzed in depth below:

    [1] It is understood that (i) you will make a reasonable effort to be available upon reasonable advance notice; (ii) you will keep confidential all information obtained, or analysis developed, in connection with this litigation or any related litigation with respect to which we may seek your advice and counsel; (iii) you will use such confidential information solely in connection with your engagement by us on our client's behalf; (iv) you will preserve any written materials, including e-mails, generated or received by you in connection with this engagement, as such materials are potentially discoverable in litigation; (v) you will not in the future consult for, or otherwise represent, any other person or entity with an interest adverse to our client's interests in or concerning the pending litigation, or the events or occurrences out of which the pending litigation arises; and (vi) you will keep confidential your retention by this firm on behalf of our client, unless and until you are identified in court papers as a testifying expert or we otherwise authorize you to breach this confidentiality.

    [2] It is specifically understood that, if you are later designated a testifying expert, all documents that you create may become discoverable, including drafts and notes prepared prior to the time that your opinion or report is finalized. In our experience, opposing counsel who obtain such documents in discovery often seek to use them in an unfair and misleading way -- for example, to suggest that a change from an earlier draft to a later version has some sinister explanation. This is particularly unfair because you will be learning the case over time, and you may not know all relevant information prior to the time that you finalize your opinion and report. In addition, the preparation of draft opinions and reports is expensive and should not be undertaken prematurely. Therefore, you agree that: (i) you will not prepare any draft opinion or report without our consent (regardless of whether the draft is for internal purposes or to share with others); (ii) you will not share any draft opinion or report, or any notes, with any other person without our consent; (iii) every draft opinion or report will bear the following legend: ‛THIS IS A PRELIMINARY DRAFT. IT HAS BEEN PREPARED BASED ON PRELIMINARY INFORMATION AND ON ASSUMPTIONS. NO ONE MAY RELY ON THIS DRAFT. IT IS SUBJECT TO CHANGE AS ADDITIONAL INFORMATION BECOMES AVAILABLE OR IS CLARIFIED"; and (iv) all notebooks or individual pages of notes will bear the following legend: ‛THESE NOTES ARE INCOMPLETE AND HAVE BEEN PREPARED FOR PERSONAL USE ONLY. NO ONE MAY RELY ON THEM FOR ANY PURPOSE. ALL VIEWS ARE SUBJECT TO CHANGE AS ADDITIONAL INFORMATION BECOMES AVAILABLE OR IS CLARIFIED"

At Round Table Group, we work hard to assist our experts in every phase of getting retained, and ensuring a smooth, positive, and profitable experience.

If you have any questions about retention agreements, or any matter, please contact one of our expert services coordinators.

For expert witnesses, part of being dangerous is to know what to expect during a cross-examination. SEAK created a checklist to help familiarize expert consultants with likely questions and topics of inquiry. Reviewing the list enables experts to focus on their area of expertise and not the opposing lawyer.

Understanding known areas of questioning will help beginning and seasoned expert witnesses anticipate questions that will come at them in court. Before your next case, review "Expert Witness Cross-Examination Questions and Areas of Inquiry."

Clark

In their book How to Become a Dangerous Expert Witness, expert witness training specialists Steven Babitsky and James Mangraviti list how "dangerous expert witnesses" present their opinions.

Here are a few of their bulletproof ideas:

• Carefully and confidently state all opinions using the correct "magic words" for the case at hand.
• Do not overstate or understate opinions.
• Act consistently inside and outside of the litigation.
• Know the applicable law.
• Be prepared to clearly and convincingly explain disagreements with the opinions of opposing experts.
  
• Test alternate opinions and be prepared to explain clearly and convincingly why alternative opinions were not adopted.
• Examine the key evidence as quickly as possible to reduce the likelihood of its condition changing.
• Never testify outside one's true area of expertise.
• Never write notes that are inflammatory, show bias, or could be used to undermine the expert's opinion.
• Do not share draft reports with retaining counsel.
• Maintain accurate bills to minimize the chance of one's own bills being used to undermine the expert opinion.

As I post articles on what lawyers are looking for in expert witnesses, I want to make sure we are all aware of what the law requires of experts.

Security expert Joseph A. LaSorsa writes an article to clarify the determination of expert status. He states that because "there are thousands of categories of expert witnesses, it is critical to have a full understanding of both the general type of expertise sought and the specific area in which the expert will be asked to opine in."

To determine if an expert is eligible, courts use a test to determine the expert's qualifications. When courts decide to have a Daubert hearing (which is most of the time), they hold the expert to the standards as laid out by Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993).

LaSorsa does a good job of spelling out the criteria for making a Daubert determination and what consultants should know to be considered an expert.

Clark

How do we build urgency into our sales pitch?

In many cases, our potential clients want to sit on their decision to buy. Our sales pitch was good? Our value statement strong? What happens? Lack of urgency.

We can all use more and better techniques to get our clients to make a decision.

I found an article that has addressed some of those questions. Please check out: http://www.raintoday.com/pages/2519_overcoming_a_client_s_la...

I am very interested in learning techniques to add urgency to sales presentations. How do you convince your clients that "Now" is the right time to buy?

I look forward to your response.

Clark

As small business people, we can all use some help expanding our businesses.

An expert witness marketing firm recently conducted a poll to find out the top concerns for experts looking to grow their business. Some big concerns boil down to getting your name out to clients without looking like a hired gun.

As more courts are turning their noses up at hired guns, this is a valid concern. However, I have researched expert witnesses for lawyers, and one quality more than many makes an expert desirable: experience.

The way to get the word out to people is make yourself easy to find. Use all the tools available on the Internet to post your resume with contact information, and utilize any service that will do your marketing for you. By connecting with a service you are working with a company who needs you to be hired for them to succeed. With the growth of social networks, it is important that we all choose at least one and work it until we have a sizable a network where our message is being broadcast to the proper circles.

In future articles we can discuss how to develop a successful viral marketing strategy. Until then, lets get networking.

I am interested to hear what you have to say about the subject.

Clark