In this episode…

In this episode of our podcast Discussions at the Round Table, host Michelle Loux connects with Kevin Quinley to discuss why project management is a powerful skill to possess as an expert witness. Kevin shares some tips on mapping out and planning your work week for a broad-spectrum view of all of your commitments. He also goes into detail on what questions should be explored during an initial interview with prospective clients and how to prepare for deposition.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Michelle Loux, Assistant Project Manager, Round Table Group

Guest: Kevin Quinley, Insurance Expert Witness

Introduction: Welcome to Discussions at the Round Table, the podcast that goes behind the scenes with influential experts. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses.

Michelle Loux: Thank you, welcome to Discussions at the Round Table. I am your host Michelle Loux and my guest today is insurance claims expert Kevin Quinley. Thank you so much for joining us today.

Kevin Quinley: My pleasure Michelle, thank you.

Michelle Loux: One of the questions I always ask before I start my podcast episodes is what do you wish you knew the first time you were an expert witness?

Kevin Quinley: That is a great question because all expert witnesses have been there.  I would say three things.

• The power of the word “no.” We want to be people pleasers. We want the new assignment. We want the case assignment. We want to get traction on our practices, but accepting assignments with incredibly short-fused deadlines can degrade the quality of the work product. If the subject matter is beyond or at the periphery of our knowledge expertise it is tempting to say yes when you ought to say no.
• Stay in your swim lane, and by swim lane I mean your subject matter expertise because it gets dangerous and does the client no favors, does the law firm no favors, and does you no favors as the credibility for your future engagement if you venture outside an area that is external to your core expertise.
• I wish I had known is the importance of project management separate and apart from the subject matter. Whether it is metallurgy, medicine or insurance claims I have found personally much of this job is project management, especially when you get several cases and hope to reach a stage where you have many cases with different deadlines. You have many priorities, whether it is the trial dates, the deposition dates, or whether they are milestone dates for a Rule 26, report, or disclosure. You are juggling a lot, and I think they need to at least weekly have a discipline of taking a broad-spectrum view of all of your commitments, deadlines, and sort of rearranging the chess pieces on the board or the pieces of the Jenga puzzle to triage and prioritize. Mapping out and planning your workweek, month, year. Make sure that you have captured all significant dates. Those are three quick thoughts.

Michelle Loux: You need to be organized. Is that something where you take outside classes or is that something you just learn along the way?

Kevin Quinley: For me, it was to an extent self-taught. There are classes on project management. I have never taken any. It is an approach I tried to use when I was in a corporate setting. I think it is a transferable skill whether you learn it through the school of hard knocks or in a corporate setting where you got a lot of things coming at you. As an expert witness with many engagements, you have project deadlines, and so I think it is transferable from a corporate setting, and if you reach a certain stratum of a corporation, chances are you will not reach that stratum unless you have innated or learned organizational skills. Each case assignment is a separate project and each one has milestone dates. Some of those are indifferent to the expert, some of them are key to the expert. I keep a chart on my computer monitor of key upcoming dates and sequences. That sort of dictates the prioritizing of how my work week unfolds. I tried to do the same thing when I was in a corporate setting, so I think is somewhat transferable.

Michelle Loux:  We use time management as well. One of the things that are important about being an expert in the interview process. Can you walk me through what you cover during that initial interview with prospective clients?

Kevin Quinley:  That is a great question, and over the years I have developed a checklist that is another footnote in terms of trying.to develop systems within my expert witness practice so I do not have to reinvent the wheel each time. So, let me just walk through some of the highlights.

• Are there any conflicts? Are you being asked to take a case adverse to someone whose interests you are already serving as an expert witness?  Is it a business conflict?  You do not have any cases, but it is somebody who sends you a lot of work over time and you prefer not to be averse to them. You do not have any public legal obligation legal comp but number one, are there any conflicts?
• Do you represent the plaintiff or the defendant? Have them identify both parties. Better yet, sometimes I will ask them to send me a copy of the complaint. That will help me get the lay of the land.
• What is the key issue for which you need an expert? That will give you an early read as to whether this fits within your strike zone and sweet spot as an expert.
• Is the case is a state or federal case? The crucial reason is that in federal court there is a lot more that is required of an opinion and report in terms of rigor, thoroughness, and time. If it is in state court the client may just need a bullet point disclosure, so that is very impactful in terms of the written work product.
• What deadlines exist for the report or disclosure, et cetera? Are they etched in stone? Are they negotiable with any wiggle room? That comes up frequently when you get these short-fuse, 11th hour proposed retentions.
• How voluminous are the materials that need to be reviewed? Do not take generalities like “Oh not too much” or “Not too many.” Invariably there are. I learned the hard way by spending Christmas vacation going through multiple bankers’ boxes of documents at the beginning of my career as an expert witness on a short fuse case. You need to look at the deadline and the length of the runway that you have juxtaposed with the universe of documents. I will usually ask counsel in terms of the number of banker’s boxes with the idea that a banker’s box holds between 4,000 to 5000 document pages, before saying yes and locking into a date. That is crucial.
• Another point is to emphasize to the retaining counsel is that you do not know what your opinions are going to be until you reviewed the material and make that clear they are not buying a hired gun in the sense of they are buying an opinion. They are buying my time and my expertise, I will not know if I can help them or not. I can give them an impression based upon what they sketch out, but invariably what they sketch out is black and white with very few shades of gray. As I say, the flattest pancake has two sides. You are hearing one side from the retaining counsel, but I try to make clear both verbally and then later in my engagement letter if it is just me and the firm that I make no warranties as to what my opinion will be. I will say this if I cannot help them. I will tell them at an early stage. Those are some of the high points If the stars align. Then, I, say thank you for contacting me. I will be happy to be a resource for you if it is a direct engagement not through an intermediary. I will propose that I send them a draft engagement letter. Tell them to take a look at it and we will take it from there. I tell them that I look forward to working with them and I only ask them how they found me because you want to track if it was word of mouth, through social media, or a website. That is useful to know to steer your marketing efforts in the future.

Michelle Loux: Experts [typically] have to do depositions. Can you walk me through what the practices are to prepare for those? What does that look like on your end?

Kevin Quinley:  I am still working on this.  I have given about 40 depositions.  I have been engaged in over 130 cases, and of those about a third of them have gone to deposition. I have got one on Tuesday. Here are my suggestions:

• Prepare for it like it is the most important exam you have ever taken. Like defending a thesis or dissertation at a grad school level, because that is what it is. It is not an open-book exam. It is not a written exam. It is an oral exam. So, overprepare both the facts of the case and the substantive analytical issues of the case.
• Show command of the facts and the basis for your opinions. I do not think you can prepare too much. and that will pay dividends. It may take extra time, but that will pay    dividends because most cases do not go to trial. Maybe 1% of all civil cases go to trial, so usually, the deposition is the trial. If you have a strong deposition performance there may be less of a need for a trial because the case can resolve through summary judgment or settlement.
• A third tip is to observe the Hippocratic Oath in terms of do no harm, and that is, to tell the truth. Make sure that your opinions align with the facts of the case. My theory is that you are probably not going to win a case at deposition, but depending upon how you handle it you can hurt a case. You may crater a case. Align your answers with what you know to be true with what you have opined in your report and importantly consistent with past testimony you have given on other cases. That becomes increasingly important if you are not a newbie expert witness because you are going to be questioned by very smart people who have spent much of the time in advance of your deposition looking for ways to make you look incompetent, foolish, inconsistent, and to portray you as a hired gun.
• I think another idea is to yield ground in the deposition, where every case has strong and weak points, and pick your battles with care. If there are issues where the facts point in one direction, you have to yield and concede. Do not try to defend the indefensible. For example, I am typically called in on issues involving insurance claim handling. They are called bad faith cases and there is no such thing as a perfect claim file. There may be things that the insurance adjuster did not do, and if it is clear that they did not do them and maybe should have, then acknowledge that. It does not necessarily mean it is bad faith. That is a legal standard, and I am not an attorney, but it yields ground. Pick your battles.
• Make a good appearance. That means your demeanor, your attire, and your interactions, not only with opposing counsel but with the court reporter. More and more are on Zoom, but in the olden days and maybe in the future if we refer back to in-person         depositions greet and meet the videographer and the court reporter. Everything you do is on stage and noticed there. Have realistic expectations because the deposition may not be the form for you to make your case. I know early on as an expert witness I would be frustrated because I would come away from the depositions thinking I never got a chance to make my case. Over time I have come to think if the other attorney is doing his or her job you probably will not. That will come if and when the case goes to trial and that will come on direct examination by your retaining counsel who will walk you through the components of the case.
• The final tip here, Michelle, would be that the expert needs to make sure that they are assertive in scheduling one or more deposition prep sessions with retaining counsel before game day. Some attorneys are very busy. I get it, but I will not talk with them in the parking lot or meet in the conference room an hour before the deposition. That doesn’t work for me at least.  I am sort of compulsive and there are always issues that I want to address or kick around with council and so I will schedule whether it is by phone or, whether it is by Zoom a few times. Again, in bygone days it has been in person, but some substantive deposition prep sessions where you can kick things around. If retaining counsel wants to do some mock deposition segments with you and I found very few could do that, I think that is a great practice, but you have to push that because if left to their own devices many attorneys are busy and will not schedule that. I need and want that. Now, I would not recommend that for any expert.

Michelle Loux: Is that listed in an engagement letter initially or is it talked about in the interview?

Kevin Quinley:  That is a good question, but mostly the latter. My engagement letter does not talk about that. What it does talk about in general terms is that they will agree to cooperate with me in preparing for testimony and if there is, I have not had this yet, but if they ever refuse to do that there is an exit strategy mechanism.  I have never had to call upon that, but usually, as we get into the case, I can explain why it is in their interest, their client’s interest, and in my interest, but even with all that, deposition and testimony is an anxiety-producing experience even if you have done it many times before. If you are not nervous or do not have some anxiety then good for you, but I say everybody has butterflies. The key is to make them fly in formation on game day, and I say I enjoy depositions the way I enjoy beating my head against the wall. It feels so good when you stop.

Michelle Loux: That is a good analogy. Now let’s talk about the expert report. How do you go about writing so that it is bulletproof or is the best it can be?

Kevin Quinley: I do try to make it platinum, but there are always gaps in the fortress.

• The first is to renegotiate tight deadlines or decide whether or not you can meet a tight deadline. I quote the Nancy Reagan anti-drug slogan “Just Say No” no because you are faced as an expert many times with those eleventh-hour, hair on fire, requests to review a couple 1000 pages or more of documents, analyze them, come to some conclusions. draft. edit and proof your report, collaborate with Council and produce a first-rate, work product, and so I want as long a runway as possible. So, if there is a tight deadline and by tight much of it depends on the volume of material. There are several variables here, but I like at least 30 days if not more from the date I am engaged. That means that the contract signed retainer is received and, materials are received. That is when the starting gun goes off. Even then, that is aggressive. So, I think to allow yourself enough time so that you can do something other than microwave an opinion. We are experts. We are not short-order cooks. Would you like fries with that? The more time I have, and I think I speak for a lot of experts, the better job I can do for the lawyer, the law firm, and the client. That is number one. Many times, if you push back and say, “If I had X amount of time, I could do it”, or “Can you talk with opposing counsel?”, or “Can you request an extension from the court?” I have had not always good luck. At least ask.
• Second, permit yourself to write a crappy first draft. I think many people feel they have got to put something down that is extremely profound. Get something on paper or the computer screen. Give yourself psychological permission to throw it against the wall with the idea that some of it may come off, maybe scraped off, maybe cleaned off, but eliminate some of the psychological friction and resistance to starting.
• The third is to eat the elephant one bite at a time. You have many issues to address in the report and maybe each day take one of those issues think about it and compose or draft some thoughts. Break it like any big project that seems overwhelming. How am I ever going to climb that mountain? It is 26,000 feet. It is Everest. You do it one step at a time. You break it down. You do not look at the summit. You look at the steps in front of you. If you look at the six feet in front of your face and you keep going step by step and chipping away at it you become clear on what your report has to address. There may be issues that you do not need to address, or maybe another expert is addressing those, or that is something that retaining counsel does not want to do. Get clarity with retaining counsel. Also, get clarity on whether the written work product is a full-blown Rule 26 report or a bullet point kind of disclosure. If you are doing a Rule 26 report and that is not needed, that may be overkill, bloat your bill, and maybe much more than the attorney wants. So, get on the same page with retaining Counsel.
• The fourth item is to proofread, but I do not rely solely on spell-check. By all means, use spell check, but some things even spell check will not catch.  I am probably not different from any other expert in that my mind will insert words that I meant not to put there. But I am too close to the manuscript. That is when retaining counsel takes a look at it or somebody else takes a look at it. You develop blind spots. There are also software programs like Grammarly or Word Rake. Some have a free version, some you have to purchase, that will spot, grammatical and other errors. Let me get somebody who knows nothing about the case. I will tell you that I have my wife read through a report. She will catch grammar, spelling, and other things that I am blind to. Somebody who knows nothing about the case can say, “Does this make sense or not?” She can be brutally honest with me and that gives me a sounding board. So, you are going to be asked who else have you talked to about the case?  So, I do not go beyond using my wife for that purpose, but I will have somebody that knows nothing about the case.
• Fifth, appearance counts, so make your report look sharp. There is a book called Typography for Lawyers by Matthew Butterick. Again, I am not a lawyer, but a report has got to be sound with no typos, proper grammar, and formatting. Appearance counts in making it good
• Finally, ask and clarify with retaining counsel whether or not they want to see drafts because different lawyers and different firms in different states have different philosophies and approaches. Some of them say I do not want to see your drafts, maybe because of discoverability issues or whatever. Others say, yeah, I would like to see a draft. So, before you send a draft to retaining counsel, be clear on whether they want that or not. I am cool either way. If they do not want to see it that is fine. Sometimes instead of that, you do not want to talk about it over the phone or do a screen share, but I do not know if that makes the report bulletproof.  I think it has got to be free if you want a platen. You want a meticulously written work product, free of typos, free of grammar problems, analytically make sense, is well organized, is easy on the eyes in terms of paragraphs and transitions, and is graphically tight and attractive to read.

Michelle Loux: Lastly, you have a wonderful website with good information that people can dig through. What is the best way to market yourself that you have found over the years?

Kevin Quinley: Well, not to overlook the obvious, but aligning yourself with an expert referral service like Round Table Group. It provides what I guess the military would call a force multiplier to broadcast your eligibility, expertise, and to cast that fishing net in the pond of business development. A second tip would be to strive to be what I call a thought leader in your subject area, no matter what it is. Whether it is metallurgy, a kidney specialist for a doctor, in the insurance realm, underwriting, coverage, actuary, or whatever your subject domain, try to be a thought leader. How do you do that? You write articles, you speak at conferences, your blog, you speak on webinars and podcasts. You generate content, not content that says I am great and this is why you should hire me, but actionable insights and tips that will be will be read by folks in your domain. That is how I became an expert. I had no plan to be an expert witness, but I was writing. I was speaking. I was attending industry conferences. There came a time when I was in the corporate role and I started getting these unsolicited phone calls from law firms to serve as an expert witness. I had no idea what they wanted. I had a full-time job, but I took one or two on sort of a moonlighting basis. I fell into this by accident simply because I had collaborated on textbooks published by the American Insurance Institute in Malvern, PA and overtures started coming to me. That should not stop once you become an expert, but it positions you as a thought leader, and it all ties into what I call content marketing. I did not develop that phrase, but I am very big on that in terms of promoting your practice by generating useful content that would be interesting to your target audience and positioning you as a thoughtful commentator on events in your field. Now, as a footnote, expect all of that to be researched by opposing counsel. in terms of opposition research, like in a political realm. That is obvious that is a whole specialty. Whatever you write and whatever you speak about in your handouts likely will be scoured.  I get that it is part of the game. Some experts say that is why you should not promote your work. I do not believe that. How do you get to be an expert if you do not publish or speak? This is just. my rant here.

Another tip is to develop a database. Start building a database of law firms and attorneys in the arena that you are commenting on. For example, I am an insurance claims handling specialist. There’ are some firms that have specialties in insurance coverage defense, and bad faith defense, so you start seeing through conferences, through reading, and social media, you discover what attorneys and law firms are corresponding thought leaders in the legal aspect of it. They are defending insurance companies, or they are suing insurance companies, and they need specialists who can opine on whether or not the claim was handled following industry standards. I think one simple way is to quote Steve Martin, the comedian who in an interview with Charlie Rose said he was brought up to be “so good they cannot ignore you.” Okay, that is a tall order, but essentially can be done once you start getting one or two assignments, do a good job, honor all deadlines, be easy to work with, and provide a meticulous work product.

Prepare exhaustively for depositions and trial testimony, that is the blocking and tackling, and do it so well that when the case is over, whether they prevail or not, or somewhere in between with a negotiated resolution, they feel that person has it together. They will tell their partners, their colleagues, people in other firms, to keep your CV and resume on file. So, I would say it sounds simplistic, but it is hard to be so good that they cannot ignore you. Most of my referrals come from word of mouth. I do not pay for any advertising. Lawyers are always asking in the depositions “Mr. Quinley, do you advertise?”  I do not pay for ads. Lawyers pay for ads and that is fine for them. They are on Television, billboards, or on the radio. It is fine for them, but not for an expert to advertise. But I digress. I do not pay for any ads.  I have a website as every law firm does. If you want to call that an app, it is more informational than saying I will help you win your case. I make no such claims, but I will say, I will l give you this. Scoop my perspective if that helps you, fine. If it does not, that is not my problem. This is my opinion.

The final thought on this Michelle is to not be shy to ask for referrals from attorneys and law firms with whom you have worked. Even if they do not need for you, you cold-call them, or if it is more, call it a warm-call. Just say here, here’s my CV, please keep it on file for future needs. Share it with your colleagues and if you are generating content through content marketing, whether it’s a blog post, an article, handouts from a conference, or a webinar where you were a speaker, say ow, here is an article that I wrote on such and such topic I thought you might be interested in. Put it on a calendar diary every 90 days or every, 180 days to cultivate top-of-mind awareness and law firms so that when that need comes up again, you are the person they think of, or at least in the running.

Michelle Loux: Yes, that was all wonderful advice, and I think as we adapt as a society all of us take on those bigger roles in the marketing world. You would not think back in the day that you would have to play and wear all these hats, but it is so integrated now that it is something you do need to know.

Kevin Quinley: It is not easy, many people do not find it comfortable because, again, stealing a quote, I do not know the source. One guy who is a successful consultant said, “If you do not toot your own horn, there is no music “.

Michelle Loux: Kevin, I appreciate all your time today and your insights. Thank you so much.

Kevin Quinley: My pleasure, Michelle. Thank you.

Kevin Quinley, President Quinley Risk Associates

Kevin M. Quinley is a thought leader in insurance claims. Currently, he is the Principal of Quinley Risk Associates in the Richmond, VA area and assists clients throughout the country. He has 40+ years experience in managing casualty claims and litigation. He has a BA from Wake Forest University and an MA from the College of William & Mary.