In this episode…

Expert witnesses are not advocates, according to Mr. Frederick Fisher. Winning the case is the purview of the attorney, not the expert. Answering questions truthfully, while not volunteering more than is asked is the key to a successful expert witness performance.

Check out the entire episode for our discussion on cross-examination tactics to look out for, the impact of technology on experts, and rush-jobs.

 

Note:  Transcript has been lightly edited for clarity.

Host:  Noah Bolmer, Round Table Group

Guest: Frederick Fisher, Founder of Fisher Consulting Group

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Frederick Fisher to the show. Mr. Fisher is the founder of Fisher Consulting Group, a loss control and prevention consultancy, as well as an expert in risk management and compliance. He’s a sought-after speaker and presenter and holds a JD from Lincoln University Law School. Mr. Fisher, thank you for joining me today.

Frederick Fisher: It’s my pleasure and I hope I don’t scare everybody away.

Noah Bolmer: Not at all. You’ve spent over 50 years in the liability services sector. How did you first become involved in expert witnessing?

Frederick Fisher: I had already been in an area of insurance now called Specialty Lines, and I was the owner of an independent claim adjusting firm. We also acted as third-party claim administrators where we were acting as if we were the claims department of an insurance company. Specialty lines insurance is a phrase that deals with what’s called professional liability insurance. The kind of claims they were handling were claims against lawyers, accountants, architects, and engineers. Many insurance agents and brokers and many real estate agents and brokers. We also handled some medical, although I tended to stay away from that. Way too real, but we handled a lot of dental malpractice cases, and over time you start seeing patterns and you think to yourself, “Wow this claim was preventable. All they had to do was this or all they do had to do was that.” Sometimes it was just documenting something which it didn’t do. The phrase came along, “If he didn’t write it down and document it, it didn’t happen.” I developed this expertise, and I started publishing articles on how to prevent claims. In 1981, I even wrote a book for real estate agents and brokers, which to my knowledge may still be the only book written on how to do things, so you don’t get sued. It was it was called Broker Beware: Selling Real Estate Within the Law.

Noah Bolmer: Wow.

Frederick Fisher: I was getting high profiles in the sense that I was writing articles that were being published in the national trades, and somebody I knew called me one day, and they had this real estate malpractice case. He said, “You are the perfect guy that could testify to this. Do you- can we- would you be willing to consider being hired as an expert?” That’s how that started in 1988. It was fun. Once I learned the way they handled things, which took two or three cases before, I realized, “You’re making some mistakes here. Let’s rethink this” so to speak. I started doing some, and I knew enough attorneys that were interested. I had to be careful with it because I had to run a business, so I’d only take two or three cases a year, and that would be about it. One thing led to another, but I always figured someday I would sit down and retire, but you [need] to have a reason to get up in the morning. Who knows, I may end up wanting to do more extra witness work than I’m currently doing. That’s how it all fell into place, and I am a deep diver. I only take cases I agree with. Knock on wood, I’m not dependent on the money. I can afford to turn cases down, and I do repeatedly. If the attorney is up against the wall, I’ll say look, “The best I can do is this. I’m not going to go over here. I’m only going to deal with this slice.” If that works for you. Fine. I’m limiting it. I will make that disclosure in deposition, for instance.

Noah Bolmer: There are a couple of things to unpack there. You were talking about when you first got started, and it helped to get a couple of cases under your belt. What were some of those earlier mistakes or things that you learned that made you a better expert from when you first got started?

Frederick Fisher: Not advocating- not being an advocate number one. Suddenly, I realized it’s not my job to win the case. It’s not my job to win the case at deposition. My job is to answer questions truthfully. That’s all. I answer the questions truthfully and there’s a difference between telling the whole truth and answering the questions truthfully, especially when you’re dealing with a question that calls for a yes or no answer. Why volunteer anything you don’t have to? By the same token, you have to also- Now you can find many more articles on the subject, but back then there was no Internet. Where are you going to get this information from? You just learn the hard way what tricky questions lawyers can come up with. Long ago I learned that as soon as they say, “Mr. Fisher, you testified earlier-” I know right then and there, one, they’re going to misstate the question and number two, they’re going to misstate the answer. I’ll make them go back, I’ll say, I think you’ve misstated it. and I’d like the court reporter go back.” Invariably, they withdraw the question. Questions that are so broad that you can’t answer yes or no because they’ll come up with exceptions later at trial and try to cross-examine you. “Did you say this?” Or “Did you say that?” You learn how to deal with those or never say anything absolutely. “Do you always do that, Mr. Fisher?” “Yes.” Suddenly, you open yourself up to exceptions. Again, you learn the proper way of dealing with those kinds of questions. How to answer them and still meet the obligation to tell the whole truth. I love that, in the sense that it didn’t take long to figure out, here are the tricky questions, and here’s how you deal with [them].

Noah Bolmer: You get an initial phone call, and you know that you only like to take cases, or will only take cases that you quote, unquote, agree with. How do you find that out? How do you figure that out during the initial phone call?

Frederick Fisher: I’m a trained investigator. I know how to answer- ask questions. It depends on the nature of the case, for instance. Then I’ll start asking pointed questions based on my knowledge. If I don’t have the knowledge why am I’m even considering it? I do a lot of insurance agent and broker professional liability cases. I do a fair amount of real estate and [E & L] cases because I understand that industry. I’ll even handle a variety of other oddball stuff, but only if I have the expertise. I’ll even handle some attorney malpractice cases if it’s an obvious situation. For instance, he blew the statute of limitations. That’s no brainer. Now, the question is whether any damage has taken place. Just because he made a mistake doesn’t mean there was any resulting damage. I’ve handled some attorney malpractice cases. Would I be knowledgeable or do I think I’d be competent to be an expert where they’re doing merger and acquisition counseling? Probably not. Unless it was an issue, again, that I’m familiar with, which is very narrow. I know where my limits are. Like I said, I don’t need to try and charge somebody money and then screw it all up. I don’t need to do that, but it is a question of probing and sometimes I come up with ideas the attorneys haven’t thought of. Suddenly, it’s, “Oh my God, that’s a game changer” but that’s why they’re talking to me. I know the industry better than they do. I have often come up with stuff that they hadn’t considered. They were like, “Wow.” The whole posture of the case changes. Then there’s the obvious. Every time I get a phone call, and it has to do with the insurance agent or broker for instance, as soon as they tell me what it’s about, I’m already on the Internet looking up their license with the Department of Insurance. Boy, the things you find out there.

Noah Bolmer: You’ve been at this long enough to have seen these changes to not just your field, but expert witnessing in general. Changes throughout- You said your first engagement was sometime in the 80s. How has technology changed expert witnessing for you?

Frederick Fisher: Number one from the standpoint of research, having the Internet available has made things enormously easy. There are so many organizations now that are publishing articles. Attorneys like publishing a review of particular appellate. Certainly, some of the law firms have their own websites and you can subscribe to their newsletters. There are so many other law firms out there you never heard of or I’ve never heard of. Those are picked up by aggregating organizations such as JD Supra or LEXOLOGY, and another one is Mondaq. I subscribe to all three of them and every day I get a feed of a list of maybe 25 or 30 different appellate decisions. Three might spark my interest because they’re in the areas I’m interested in, or sometimes none. The stuff up so fast, and you didn’t have that ability back then. As a back story to that, one of the things that my claim adjusting firm did was we subscribed to, back before the Internet of course, we subscribed to what was called the Advanced Sheets. What that was like was a paperback publication that came out about a month after the month closed and in it was all the latest and greatest state appellate court decisions that ordered published as well as Supreme Court decisions that were ordered published. You could scan through it quickly and see which cases were of interest by topic. That helped us in two areas. If it was a coverage decision then that would help us in the way we analyzed a particular policy that was the one an issue in that case, for instance. If it was a liability issue involving the types of claims we were handling, then we knew what, how liability had been increased or decreased or what have you. Between the two, getting information on cases involving coverage or liability gave us the ability to enhance the questions that we would be asking during our investigation. That was a valuable lesson. In addition, there was a law firm that used to publish a monthly column in Insurance Week magazine. They published a monthly column on either liability that would be of interest to insurance brokers or coverage. That was another reinforcement of that. With the Internet, when I came along, we were still doing claims and so that helped us a lot. As I made the transition into becoming an insurance producer on a wholesale and NGA level. Coverage decisions or certainly ones we were interested in, as well as liability. How is the liability changing now? Are there insurance policies to even cover that? It gave us that leg up. The old saying “knowledge is power: well, there was a good example of it.

Even now, I’m religious about looking at these feeds. There’s another law firm, a prominent law firm who used to put out a monthly e-magazine, not hard copy, but monthly magazine on the latest and greatest cases on specialty lines. The partner who was in charge of it was somebody I personally knew, and he was extolling the use of absolute exclusions, and I’ve been on a warpath about those since 2009. I’ve written five articles on the dangers of absolute exclusions, including a big one that The Internationalist Management had published in 2020-2021, something like that. We looked at- It was a review of 30 decisions involving the enforcement of absolute exclusions and how broadly they’re being interpreted, and how bad these cases are getting. Whatever happened to the reasonable expectation of the insured? Out the window. The language is clear and unambiguous. What happened to the concept of contracts of adhesion and unequal bargaining position? Out the window. The language is clear and unambiguous. We’ve migrated from what insurance is all about and how things should be interpreted to this fanatical concept that if the contract is clear and unambiguous, it will be enforced. What happened to that? Or the old adage that insuring agreements are going to be broadly interpreted and exclusions narrowly construed. Again, you got a 9th Circuit Judge saying, and I quote, “We are about to enforce a staggeringly broad exclusion” – staggeringly broad. All these little insurance maxims are dying. I wrote an article on that called “Litigation is Good”. I talked about how all these maxims are out the window. It was published by the Professional Liability Defense Federation(PLDF), an organization of defense lawyers, and I’m a member of the organization. At one time, I was originally, vice chair and co-chair of the insurance agent and broker committee. When these when these cases come down and the brokers are going to get sued for malpractice. Whether they can be sustainable or not is another question, but they’re going to get sued. They’re being thrown under the bus daily and I have to hand it to the PLDF for publishing that article because it was against the grain and-

Noah Bolmer: When you write something that’s against the grain. Do you ever worry- Do you ever end up on the opposite side of a matter with somebody who wrote the opposing article and have to confront them on the details of these things?

Frederick Fisher: No, I haven’t had that happen, but I will say that again to the credit of the PLDF, I was writing an article because one of the contentious things especially on the insurance agent or broker committee was do wholesalers have a duty to anybody? Of course they do, but they’d like to have you believe we’re just a conduit. Which is rubbish, especially when you look at some of the advertising wholesalers do on the Internet. What are you talking about? They don’t say we’re being a conduit here, but I’ve had a running disagreement with a particular person of that association on this topic. They asked me to write an article so I said I’ll talk about the liability of wholesalers. Then I invited the other fellow to do counterpoint article. It had never been done before for the PLDF journal and the editor was for it. She’s [said], “That’s a great idea.”

Noah Bolmer: Sure. Now it’s exciting to read.

Frederick Fisher: Oh, yeah, and he did. Later on, he complimented me. “I can’t believe you did that.” I said, “Why not?” Just because we have a difference of opinion, so what? Let people decide for themselves who they think has better purpose. You have to understand we have forgotten what insurance is all about. Insurance is supposed to put you back in the position you’re in before the loss.

Noah Bolmer: Right. Make you whole.

Frederick Fisher: It’s supposed to be a pool of people in the same situation. They pay money into the pool. Hopefully, there’s enough money there to pay whatever claims happen. Everybody’s happy. Yeah, I didn’t have any claims by helping you get back on your feet. But what if I have a claim, then you guys are paying for me to get on my feet. It works out.

Noah Bolmer: How do you get ready for something that’s going to be a huge action? There’s going to be contentious cross examinations and tense depositions. All of that. What do you do to get centered, ready, and prepared to perform in court?

Frederick Fisher: It wasn’t that difficult. I knew what the issues were. It was quite simple. Obviously, never let me interpret coverage, but all I had to do was this is what was done and it was solid in my opinion. I was well prepared. The facts speak for themselves. I’d done my homework. No matter what they threw at me, so- It happened to trial this is a – One of the things they wanted to try, and one of their tactics, was to try and put together the position that the quote definition of claim is ambiguous. I had written an article- I’ve written many articles on the dangers of claims-made-  I’ve written so many articles on claims-made forms, and one of them showed up maybe 10 or 15 different definitions. This law firm wants to try and claim that the definition of claim is ambiguous. They pulled the article, but they just pulled out the definitions. The [attorney] puts a definition up there. [He says], “Does this look familiar to you?” and [I say], “Yeah, where’s the rest of the article, counselor?” By the third time he put up a different definition, I’m saying, “What is it about this article you don’t want the jury to see.? Why don’t you put the entire article up?”

Noah Bolmer: You as an expert witness argued a bit with the attorney rather than letting your-

Frederick Fisher: And the judge was letting me get away with it too.

Noah Bolmer: Wow. I was going to say that’s not something that experts are coached to do often. Tell me a little-

Frederick Fisher: I wasn’t coached, but the judge was sitting there and not saying anything. So, okay, I want to run with it. My answer ultimately was the same. “Counselor, there’s no question that different definitions can create some issues, but at the end of the day, this case has to do with making a disclosure of either a claim you know about or making a disclosure of a potential claim. The solution doesn’t matter what the definition is. The solution is to report all claims and all potential claims immediately, and when you’re applying for coverage, disclose them as well. That’s the solution. It doesn’t matter what the definition is.” Another definition comes up on screen. Same answer. Finally, we’re getting up to number nine or ten and I’m counting them, and I said, “Are going to go for a dozen?” Now, the jury’s starting to laugh. “Are you going to go for a dozen?” I said, “Look. You’re just proving my point as complicated as all this can be. The solution isn’t. Report all claims and disclose all claims and potential claims. Report them as well.” And problem solved. To, then I guess to twelve, and I said, “Are you going to a baker’s dozen?” Now, the jury is laughing their heads off, and when we got up to number fourteen, I toyed with the idea of turning to the jury and saying, “You want to help me with the answer as a chorus?” I thought about that and decided [against] it. Let’s not push the judge. Finally he intervened and said, “All right, counselor; I’ve heard enough too. This is going nowhere. Move on.”

Noah Bolmer: I’ve heard from other expert witnesses that once you get a chuckle out of the jury, it’s essentially over. You’ve won them over.

Frederick Fisher: Juries tend to like me for a lot of reasons. And I think-

Noah Bolmer: Tell me about it.

Frederick Fisher: Number one, I don’t come off like an expert. “I’m the expert here, ladies and gentlemen, I know you’re going to listen to everything I have to say,” No, even during the voir dire to talk about speeches and seminars, articles, and books. My attitude is, look, it may sound impressive, but unless you’re in the industry, you wouldn’t necessarily know that. Number two, it’s only of interest to people having trouble sleeping. “My books and articles are guaranteed to cure insomnia.” Now, I’m making fun of myself. The other thing that I’ve been told is that I have a unique ability of taking complicated concepts and explaining them in a way that people can understand without, and most importantly, without appearing condescending. I can do it by example. “Here’s what this means.” [I} give it an example they can relate to, and they like that. I’m not talking down to them and I’m apologetic. I’m that way. At the end of the day, when I know I’m right, I know I’m right. I won’t back- I was in a case some years ago, there was $219,000,000 on the table. Most of it had to do with change orders on a highway construction project. This poor jury had to listen to three months’ worth of change orders. Oh my God. I would have been brain dead after that. What could be more boring than that? Maybe taxes, but for-

Noah Bolmer: Right.

Frederick Fisher: -my portion of the case was narrow and limited, but it was contentious. I stuck to my guns. I knew I was right. The attorney at one point may ask me this question. “Counselor, I don’t know many times to say this. I would never make that recommendation to my customer. I just wouldn’t. It would never happen on my watch. Not on my watch.” I think I said that four or five times, and they pushed that issue and this was early in the case. This was in month one, and so, two months [went] by. I finally got a phone call, “We got a verdict. You’re not going to believe it. We won!”  I said, “God, what did the jury have to say?” [The attorney said], “You’re not going to believe this, but one of the things that stuck in their minds was when you stood up to the attorney and said, ‘Not on my watch.’ They remembered that.”

Noah Bolmer: Do you typically follow cases after your part is done to see who won, or lost? How your performance was with the jury, and those sorts of things? Do you pursue that?

Frederick Fisher: Yes, yes, I do. I want to know what happened and I want to know whether I was of assistance. For no other reason. Are they going to use me again? I do, and most of the time, the attorneys will call me after the verdict comes in. Invariably as an expert. I’m using the- especially if I’m on the defense side I’m the last guy to testify. I do want to know what happened and did I do anything wrong or screw anything up and invariably I’m always told. “No, they loved you. You know you did a great job.” Then of course, the ultimate question. Would you use me again and you know? Yes.

Noah Bolmer: Is that how you get- Is repeat business a lot of your work?

Frederick Fisher: I wouldn’t say a lot, but I do have repeat business, especially on the defense side, although I’m getting some repeat business on the plaintiff side. They know I’m a game changer and I come up with stuff that nobody had thought of.

Noah Bolmer: As a JD, is it ever difficult to turn that off and not interpret the law?

Frederick Fisher: No, it’s not hard for me at all. I know where to draw the line. I’ve said, I’m not here to interpret the law. All I know is this is what I’m supposed to do. This is the regs. Tell me what to do and what not to do.” That’s pretty clear. Then I stop. The same thing with questions of fact. I won’t decide questions of fact. I will do it either/or analysis. I’ll tell you 100% of the time an opposing expert is an attorney. I love it. Especially when I’m dealing with a state or a federal court where I have to issue a rebuttal. They always cross the line, and I’ll open that rebuttal with a paragraph that basically says, “I didn’t know if he was writing a brief or a thesis for a master’s degree in law or what. One thing I do know, he was citing law, and he’s not supposed to do [that]. He was advocating the facts when he’s not supposed to do.” I said, “That’s completely inappropriate. As a role of an expert.” One hundred percent of the time, the magistrates are the judges who have agreed and gutted 80 to 90% of their report. For that very reason. I don’t need you citing cases, counselor. I don’t need you advocating a position like it’s, a closing argument.” Which is what they do. I won’t decide questions of fact.

This came up in a case in Nevada which follows the federal rules. One of the key points of the case is no evidence of this or no evidence of that. This witness came up and provided the declaration or provided the report and he was providing a percipient witness kind of thing and he brought up a question, that caused me to have to in my rebuttal. I had to say, “Look, now we have a fact here that’s being alleged and I’m not going to decide a question aside. So, here’s my review. It either is or it isn’t.” However, when this event took place, it was after the loss. So, in reality is irrelevant anyway.

Noah Bolmer: Do you find that attorneys appreciate you kind of helping with that with trial strategy to some extent?

Frederick Fisher: I don’t do trial strategy or what I call case plan. I might ask them about it and when they tell me, “We’d rather have you do it this way or say it that way.” Or “We want to deemphasize this and emphasize that.” My attitude is if it does not affect my opinions, then I’m happy to do that because I don’t want to interfere with their case plan. Even if I think I’m right, “You need to emphasize this.” If they don’t want to do it, I’m not going to argue it, because it still doesn’t affect my opinion. If they’re smart, they’ll listen to what I have to say and more often than not, they do. Like I said- For instance, I’ve had some attorneys tell me “We want you to write your report and you’re free to tear this guy apart.” Or “No, we want to take the high road.” That’s fine with me. I don’t care. Even when I tear them apart, I don’t do it with strong adjectives. I want to stay away from that. I don’t want to tick off a judge or anything. But by the same token as it’s like, “OK, here’s where he’s wrong.” I don’t need to editorialize beyond that-

Noah Bolmer: -even though you might want to.

Frederick Fisher: Oh yeah. There have been times I’ve wanted to do that.

Noah Bolmer: You’re a published author, a sought-after speaker, a presenter, and you’ve been doing this for a long time. You’ve written a lot of reports. Do you ever worry about keeping track of every little thing that you’ve ever said on a subject that might come up in a deposition [or] might come up during a cross-[examination] and getting impeached on something that you said a long time ago? How do you keep track of all of that?

Frederick Fisher: It’s easy. I’m 100% consistent.

Noah Bolmer: You never change your mind-

Frederick Fisher: I never change my mind with one exception.

Noah Bolmer: What’s that?

Frederick Fisher: One exception is jurisdictional differences, and I make that clear. That’s why I love it when somebody wants to try and cross-examine me with one of my articles. Good luck with that. You’re going to run- you’re going to run into a buzz saw. That happened recently in a matter. The guy says, “Does this sound familiar to you, Mr. Fisher?” I said, “Yes it does.” And I said, “The only thing missing from what you’ve just quoted me is where I was talking about how I agree with the standard of care.” And as a personal opinion, I said, “I don’t agree with it, but that was a personal opinion. Let’s go to that portion of the article that you didn’t bring up on screen. If you don’t want to do it now, we’ll do it in trial.”

Noah Bolmer: Do you find that people take you out of context in that manner [often]? Is that a common strategy?

Frederick Fisher: They try. They try.

Noah Bolmer: So that’s something that expert witnesses should be aware of.

Frederick Fisher: You have to be careful if you’re going to write articles or if you’re going to give speeches. Be careful what you say because it could come back to haunt you. There’s no question about it. If I’m doing a presentation. If I’m writing an article, depending on the context, I’ll make it clear this is a jurisdictional question and that other states don’t follow it. I’m clear about that and when what I’m doing- because I know that might be used. I don’t worry about it because when that happens, I know I can talk around it  easily and accurately. “Why don’t you put it on the screen. Is it something you don’t want the jury to see?”

Noah Bolmer: This is such a dynamic field with all of these changing laws, rules, and regulations. Of course, the jurisprudence then changes everything on top of that, how do you- How do you maintain- How do you stay current in your field? How are you constantly reading all of the case law? You obviously are a professional speaker. Do you also attend seminars? What sort of things do you do to stay abreast of everything?

Frederick Fisher: I do both when I can. I’ll sign up for a seminar or webinar. In addition, I get all these feeds and there are articles written by law firms, and sometimes they include the actual case, and sometimes they don’t. If I want to read the case out, it’s not hard to find. I look at those articles and [they] tell me what I need to know and then I store them. I must have gigabytes of articles broken down by category, with or without the actual appellate decision. That’s how I stay abreast of it. Then there’s a lot of articles that other people are writing and I read their stuff too. That’s how I stay on top of things. “Oh my God, look at this one.”

Back to the subject at hand. There’s one thing. We like to see from lawyers. Get your *** **** experts lined up early in the case. I am so sick and tired of saying, “We have an urgent need. The reports due by the end of the month.” Good luck with that. Do you think I’m sitting around here with nothing to do?

Noah Bolmer: I have a lot of experts who say that they charge time and a half or double for those rush jobs.

Frederick Fisher: I’ll give you a good example of why that’s just physically- First of all, the downside to it. Number one is I would say 80% of the time by the time I get retained, discovery is already closed. I’ll be asking questions about stuff and they’ll say, “Gee, we don’t have that” Or “We didn’t get that” Or “We don’t know.” I said, “Discovery is closed. We’re not going to find out now.” That’s number one. Number two, I may come up with stuff that changes the game.

Noah Bolmer: There’s no time to change the strategy.

Frederick Fisher: It can’t be done. You’ve got 42,000 pages of documents to read through in two weeks to be able to do a report. That sort of thing. I’ll give you a good example of how this could have a huge fiscal impact. I was hired very early in a case with an insurance broker malpractice case involving one of the largest insurance brokerages in the country, certainly in the top ten, and they dropped the ball. I couldn’t believe it when I was told what the case was about. Literally the Executive Vice President walks into the office to talk to the President of this big construction company over their proposed construction of this high rise in going up in downtown Los Angeles. Of course, what immediately comes to mind is environmental liability. There are two kinds. There’s pollution created during the course of construction and then there’s disturbing unknown pollution that might already be there during the same thing. You need both and there are plenty of insurance companies that have the capacity to write that coverage. I know who they are. That’s not what happened. They got one that covered only any pollution you create. They were excavating at downtown L.A. and of course, there’s going to be PCB’s down there. You just know it. They got denied coverage. The guy calls me up and I can’t remember if the lawsuit has already been filed or not. If it had, it was they hadn’t even gotten the answer yet. We’re early in the case. I’m asking all these questions and he’s given me what little he knows. I said, “Here’s what we need to find out but I can guarantee you here are the answers. Number one, what insurance companies did they go to? Here are the companies I know would have automatically done both. If they didn’t go to these insurance companies, the only reason I can think of is they can’t get to them on their own. They can’t deal directly for some reason. They had to go through a wholesaler and they didn’t want to share the commission.

This guy is the Executive Vice President right? I said, “You’re telling me that the Executive Vice President of a major corporation is going to walk in the door to handle my account.” Boy, am I impressed.” Thank you. Yeah, alright. In reality, that’s not what this guy is. This guy is not a corporate officer, although he has this big fancy title. These are all questions to find out in discovery. Then we got to the thing about the insurance companies, of course. Who do they market to? Were they dealing direct? On and on and the same with the title of this, and that. All these things. During the course of maybe two years or a year and a half I would get a phone call now and then. He let me know the latest information he had gotten. s and how it fits exactly as I told him. Then, it turned out this guy, I was right about his title. Then it turned out he wasn’t even the expert on environmental. I said, “Really, who is?” He said some person in- Another question I suggest to find out who the expert is on environmental. It turns out it’s a guy in Chicago but internally they don’t allow the sharing of commissions. This guy was the producer. He was the one that brought in the account, he gets all the commission. So, you think the guy in Chicago’s going to help him at all? Not a chance. When I heard that we’re getting later in the case, we’re getting close to discovery being closed. If the discovery had already been closed and he didn’t have any of these answers, we’d be D-E-D. He calls me up and tells me the latest and greatest about where the real expert was and why he wasn’t utilized. I started chuckling. I said, “Do you realize what’s going on here? In my mind, they’re willing to screw their policyholder to maximize their own revenue internally, and they don’t care. I think you’ve got grounds to seek lead to amend your complaint to request punitive damages. I told them why. He said, “Okay. This is great. Thank you.”

Maybe a month or two goes by and he calls and says, “Fred what are you doing for lunch today?” I said, “Maybe having it with you, what happened?”  He said, “We settled the case.” Then he says, “I can’t tell you what it was, but my client are very happy.” I said, “Wow, that’s fantastic.” Then I said, “Let me see how much time I have on this file and it turned out I had $3,200 worth of time on it. All phone calls. I hadn’t reviewed anything. I said, If we have lunch, I’ll bring your refund because I had an evergreen retainer of $3,500, and I had only used $3,200 of it. I bought a check for $300.00 and I’m thinking- Then and then it came- Then at lunch, I said, “I have to compliment you, counselor. If I had to read sixteen depositions and all the other discovery material my bill before trial probably would have been about $35,000 and here I am giving you a $300 refund.”

Noah Bolmer: When cases go to settlement, does it have enough of a negative financial impact that you’re like, “I wish so many cases didn’t settle?” Or is it something that’s just the way that it goes these days?

Frederick Fisher: These days, if my deposition has been taken, I don’t get upset. That means I had to put in a lot of time reviewing stuff and being prepared for my deposition. If that’s before my deposition is taken, I’d remind the counsel, “Don’t you realize that this year is be kind to your expert year? You’re not supposed to be settling cases until I made a little money on this.” In reality, I’d rather see the case settled. I always say congratulations. If I gave them good advice and gave them a lot of good information that they could use, which I do, it could be a game changer. Even though my deposition hasn’t been taken yet, I still do a fair amount of research on it.

A good example of that is another case that was settled. It was a situation that was ridiculous. They were acting like, “Yeah, this insurance was readily available.” Blah blah, blah blah blah. I went onto the California Search System and downloaded a whole bunch. He actually- The opposing actually did a declaration or maybe it maybe it was also in his deposition? We looked at all the different companies that wrote this class of insurance. They didn’t look at the policies, they just rattled them off. I’ve done all of them, and what he’s saying isn’t true. Every single one of them got shot down. This one settled. Fine, but I’ve got my research time into it. But to me, I don’t need the money. I need a reason to get up in the morning.

Noah Bolmer: Do you have any last advice for expert witnesses or attorneys working with expert witnesses?

Frederick Fisher: For expert witnesses don’t take cases you don’t agree with. Don’t take cases where you’re on the edge of, “Am I even capable of handling it?” Then you can never go wrong. As far as attorneys, for gosh sakes, be in contact with your experts. Keep them up to date and most importantly, get them on board early. It could save a lot of money, but waiting until the last-minute means discovery is closed. If you didn’t get something during discovery because you didn’t even know it could matter, you’re toast. It ain’t that expensive to hire an expert and have a few phone calls up until it gets heated, so to speak. It really doesn’t, and a good example of that is $3,200 versus $35,000

Noah Bolmer: Sage advice, Mr. Fisher, thank you for joining me today. And thank you, as always to our listeners for joining me for another edition of Engaging Experts. Cheers.

Frederick Fisher, Founder of Fisher Consulting Group

Frederick Fisher, Founder of Fisher Consulting Group, a loss control and prevention consultancy, as well as an expert in risk management and compliance. He is a sought-after speaker, presenter, and holds a JD from Lincoln University Law School.