Before We Get Started: Setting Expectations

By Noah Bolmer

Getting off on the right foot with your engaging attorney means setting expectations at the outset, as the majority of issues that may arise might have been solved early on with a strong meeting of the minds. On our podcast Engaging Experts, we’ve asked expert witnesses how they go about setting expectations prior to commencing work.   

Ask Questions 

Finance expert Don Keysser recommends preparing a list of questions in advance:  

When you first get engaged by an attorney, immediately sit the attorney down and go through a list of questions and understand the timetable clearly. […] They’ll say, “Don’t talk about that. Talk about this.” That’s fine. I understand that, but I want to make sure that I am meeting their needs within the spirit of my own knowledge and my own base. I will not give legal opinions. I will give opinions on my expertise, and not other expertise. I will sit the attorney down and have that conversation right off the bat. It’s the first conversation we have. I want to make sure we’re all on the same page in terms of expectations. 

Similarly, nutrition science expert Dr. Douglas Kalman manages his timelines through questioning the attorney:   

[O]ne of the things that you look to do probably in real and regular life is managing expectations. In this way, when you are working with law firms on complex—or even easy—cases, you have to manage the expectations of what date the report is due. What highlights are you looking for? What are some of the strengths and weaknesses? Where can we introduce things, you may have not thought of? […] We like to manage those types of expectations and get a clear-cut calendar timeline of when everything needs to be pristine. That helps because once you have good communication it is easier to be successful in what you are doing. 

Stay In Your Lane 

Attorneys reasonably expect experts to have sufficient expertise to opine given the facts of the case. Bioengineering expert Dr. Chris Daft quickly declines cases where he is not sufficiently expert to do so:  

I do a couple of things. One of them is: I try hard to not oversell my capability. If they ask me if I am familiar with something and I’m not, I’m straightforward in telling them that I’m not. Maybe that means they get another expert for that part of the case, or maybe I don’t end up working on the case. The worst possible situation would be a case where I feel technically out of my depth. It’s completely worthwhile not getting the business in order to avoid that situation […] I want to tell them that before expectations get set so that if my position doesn’t work for them, let’s stop and you can get another expert. 

Insurance expert Kevin Quinley agrees, noting that initial phone calls are not always the full picture:  

Be willing to pull the ripcord early, if you cannot help. Whatever counsel tells me on that first call, I take with a grain of salt. Not because I assume they are liars, but as I say, “the flattest pancake has two sides.” When you are contacted by retaining counsel, they’re paid advocates. They’re giving you one side of the case, and I usually find out that it’s not black and white. As you dig into the case materials, you find there are shades of gray, and if it’s so gray that you don’t think you can help, be willing—at an early point—to make that phone call and have that awkward but necessary conversation as to why “I don’t think I can help you. I’m not saying you don’t have a case, and you might be able to find another expert who disagrees with me who is willing to say it, but in fairness to you and in the interests of transparency, I don’t think I can help your case.” 

Nevertheless, it is not always clear-cut. He continues: 

Sometimes it’s in a gray period or a gray phase where I will say, “I’ve analyzed how this insurance claim was handled. There are some problems here. Some aspects I can defend, others I can’t. I’m going to have to give ground where I must, so I don’t compromise my own credibility, and with an eye toward future cases and consistency. There are other aspects of the case that I can defend. If you’re okay with that, then let’s proceed on that basis with those caveats.” […] you have to flag counsel and say, “I’m not going to joust at windmills on some of these points, but it will boost my credibility on those points I can defend.” […] Number one is to set clear expectations—and that goes back to the engagement letter with the appropriate disclaimers about what you will and will not deliver or the boundaries of your subject matter expertise. No warranty of a favorable opinion or a case outcome.  

A Proactive Approach 

It is incumbent upon expert witnesses to inform the attorney of what you need and the timing you require to get the work done, according to medical product regulatory expert Steve Silverman:  

I told the lawyer who had retained me, “I haven’t done this before, and I believe that I can do a good job. You let me know what you need, and we’ll go from there. You will advise what you’re looking for, and I’ll respond to that.” That was a mistake. What I needed to do was to affirmatively, and proactively conform and shape the engagement, including timing and then proactively advise the attorney, “If this is what you want, these are the materials that I am looking for, if you can provide them. This is what I would expect to review, [and] this is what my deliverable is going to be, etcetera.” The onus was on me to be the professional and to shape the engagement. I didn’t know because I hadn’t had prior expert experience [and] then the onus was on me to figure it out. I assumed incorrectly that I would get clear guidance from the attorney about what he was looking for, including timing. Things went sideways—and candidly, the things that went wrong, they were on me. I failed to do what I needed to do, and there was pain, and there were lessons learned. 

Healthcare compliance expert Jean Acevedo recommends getting full clarity before beginning. Experts should never feel put off when asking questions:  

One message for both attorneys and new experts is to be curious and ask questions. Do not feel like you should know this. [Maybe] you do not want to look silly and ask. There are no stupid questions—only ones that you have not asked and are going to kick yourself for not asking. For attorneys, remember that you are probably not working with another attorney, so make sure that your expert feels comfortable enough to ask you questions about procedures and processes. Do not make the expert feel silly, which was why they did not want to ask you in the first place. Make sure that both sides work collaboratively. You are all working towards the same goal and hopefully, have a good result for the client, whoever it is that is being represented in whatever action.   

Payment and Hour Expectations 

Mycology expert Dr. Nik Money makes sure to relate fees to expectations to avoid courtroom embarrassments:  

Understanding what the law firm’s expectations are is significant for their part. Then understanding what my expectations would be if they engaged me. I expect—they’ll see the fee schedule, for example. What do they want from me? What kind of analysis do they require of the situation? Is a site visit necessary? […] In some cases, it’s useful for me—as I imagined it is for other expert witnesses to visit the site—but that can be time-consuming and costly. Is that really necessary? In some cases, it isn’t, so I’ll make the case that if you ever expect to have me as an expert witness in the courtroom, I don’t want to be asked the question, “Did you ever actually examine this product yourself?” If I’ve just based it on looking at photographs, then that can be helpful in some cases. […] The other thing for me that’s important is understanding where the data is being collected beforehand. Do you have information that you can share with me? I can’t possibly write a report based upon hearsay. I need to see some data and so in some cases, we’ve had an hour consultation for which I haven’t billed the attorney and said, “If you can’t provide me with data, there’s not much that I can do as a scientist.” 

Toy industry expert Professor Lynn Rosenblum ensures that everyone is on the same page with respect to billable hours prior to starting work:  

It’s just setting down the expectations and following through as soon as possible, or respecting each other’s time. Being honest […] but it can be maybe—uncomfortable is the right word—with billing and how to do it […] I always make sure that those things are clear in the beginning and I always make sure that I never send a client bill or have a lawyer send a bill to a client, until everyone has agreed that those are the particular hours. I try to detail that information. 

Mr. Quinley gets out in front of surprises:  

[I]f you’ve a jumbo bill coming, communicate with the client in advance. “This month’s bill”, or “this quarter’s bill, is going to be higher than normal, and here are the context factors for it. Big supplemental document production, some additional depositions, and the scope of the engagement has increased.” Never surprise the client with the size of the bill. Let them know beforehand, prepare them. It’s no guarantee, but it helps grease the skids on that.  

Deliverables 

Nutrition science expert Dr. Susan Hewlings avoids assumptions regarding deliverables and depth of analysis based on past experience:   

The biggest thing we learned is to stay in close contact with legal because oftentimes we are coming from two different backgrounds. [My partner] and I come from a science and clinical background. Sometimes we will try to interpret what they are asking us for in reports, and we are wrong. We make sure to keep in close communication and ask questions from our legal sources. We do not want to do too much work and then have them say that is not what we wanted. We have had that. We have done this whole report—have done this total deep dive, spent hours on it and the lawyers said, “This could have been in a three-sentence statement.” Making sure you are clear on what you are being asked and making sure your deliverable matches your ask is important.  

Aviation expert Captain John Cox is careful to get on the same page with his engaging attorney with respect to reports:  

First, [there are a] variety of formats and ways that reports must be submitted to the court. It’s as though each court has its own way of doing things, whether it’s a federal court, a state court, or whatever. That has changed over the years. One of the questions I ask early on is, “What do you want me to do? Do you want me to write a report?” In some cases, the answer is, “Yes.” In other cases, it’s “No, we’ll do that at a later point.” 

Open Communication 

Experts should always expect and make clear that they must be able to get in touch with their engaging attorney. Fiduciary expert Dr. B.J. Hawkins recounts a case where a lack of communication has serious consequences:   

I had a case and the attorney repeatedly said we would talk soon, and the soon became the day before the trial. […] I had a record that I had emailed, made telephone calls, texted, and had not been able to get the attorney’s attention. In the briefing the day before I realized that it was an inexperienced attorney, number one. Number two, the staff had not taken care of my hotel reservations properly. I did not have a room when I arrived, and it took me three or four hours to get in a room. I was exhausted after the plane trip and during the briefing session—which turned out to be late in the evening because the attorney kept pushing it back—I was sleepy, tired, irritable, hungry, and the trial started at 8:00 o’clock the next morning. What I think was important is that it was unfortunate for the clients—but it was also unfortunate in terms of how I presented myself as a professional. I learned the lesson that if the attorney could not make time to communicate with me in sufficient time, then I needed to draw the line. If an attorney would not communicate with them, some experts would say “no, I do not want to annoy or get on the bad side of counsel”, and I would say that you have to look at your reputation [and realize] that what you say is part of a permanent record. You have an obligation to yourself as a professional, to professional ethics, and to the field to sometimes draw the line. 

Conclusion 

Expert witnesses and engaging attorneys benefit from establishing expectations early. Clearly communicating and outlining responsibilities, deliverables, timelines, and expected size of work/hours billed reduces the risk of confusion and promotes a more efficient collaboration. When expectations are well-defined, both the expert and the legal team are better positioned to present a cohesive and credible case.  

For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!