Call me! Initial Expert Conversations

By Noah Bolmer

Most expert witnesses are comfortable with a free initial conversation with attorneys. Pre-engagement calls are a two-way vetting process; attorneys consider whether a particular expert satisfies their needs and fits with trial strategy, while experts determine whether the case fits within their expertise, and schedule. On our podcast Engaging Experts, we ask our guests how they approach initial phone calls.  

Returning Calls 

The first step to a good initial conversation is returning calls. Forensic Psychology expert Dr. Jolie Brams notes, “Getting off of the right foot is starting from the very beginning, and that means returning phone calls. Many, many attorneys call me, and they say, ‘You were highly recommended, but we’ve got two other people and you’re the only person that not only returned our phone call, but more importantly, returned our phone call with some interest and knowledge on the other end.’”  

Nevertheless, for experts still actively engaged in their field, balancing work with expert witness engagements can be difficult. Dr. Brams enlists a practice director to help field initial calls:  

I have a practice director and if you have a busy forensic practice, I strongly recommend you get someone to work upfront. [T]he busier you get, the more calls you’re going to have day and night, the more demands, the more reports to proof. [. . .] [My practice director] knows my business—she really understands civil and criminal litigation. And when these people call, she basically vets people and she also talks to them about who I am and what we can do. [. . .] She also sets limits and boundaries—what are the expectations, what funding is available—all of those things. And she provides [potential clients] with [examples of] expert consultations and testimony that I’ve given. So that upfront shows your practice to be professional, and it creates a whole ambience for the rest of the consultation that you were not somebody who just was found off the street—that you’re a knowledgeable person, and that the people who work with you will get things done for your case, for your clients. 

A Freebie 

Free initial consultations have become standard practice, and for a good reason. The role the attorney envisions might not quite line up with your expertise, or they may want you to opine on additional areas that you are not comfortable with. During the interview, you may also discover a conflict that wasn’t obvious from a simple list of the parties. This is also your opportunity to find out what the attorney and their team are like.  

If you are so established in your field that everyone knows you, the attorneys may need less “facetime” to make up their mind about you, but it still behooves you to learn about the prospective client and their case. Participating in a pre-engagement interview is in your best interest.   

Dr. Brams reiterates many of the reasons it is useful not to charge, and adds a few of her own:  

First of all, anybody who believes that you are “giving it all away” in a first interview does not have to do a case—you cannot give everything away. [E]ven if you are not hired, you can give people advice such as, “I believe you need this type of expert and not me.” Or, “Have you read this book or considered this diagnosis?” [. . .] . In that phone call, I get a sense of what that attorney’s motivations are, what they would be like to work with, and whether we can work together. [. . .] There are attorneys that call with questions that cannot mix in a legal sense. They want an answer which is not adherent to what psychologists can do for them. So yes, those initial conversations save a great deal of pain and a great deal of time. It is important that I can come back to you and say this person needs X, Y or Z and not me. [. . .] I do not bill for that initial contact. I consider that to be a professional investment in many ways. It is a professional investment, because even if that case does not work out for that person [. . .] it might be two years later, but I will get a callback. Or I will get a call back from one of their colleagues. It is guaranteed they will never forget that this was a brief phone call.  

I also do it for self-protection. I want to know what is going on with this case. I want to know who the funding sources are. I want to know the cooperation of the attorney. 

. . .Or no Freebie 

Dr. Brams does finish with the caveat: “However, there are opposing views on this. Some experts, for instance, are in very niche and currently in-demand fields and find the time on these calls, which don’t always lead to engagements, more problematic.”  

Cryptocurrency expert Richard Sanders is one such exception, noting:   

This advice might not apply to most experts, but the ones that are in a real niche: do not do pre-engagement phone calls. They are not worth it. That sounds so counterintuitive, but we have more people that are able and willing to hire us. It must be two to three emails back and forth, then getting [an engagement]. It is never just a quick call. There is no such thing, at least in my experience as a five-minute or a fifteen-minute call, and it is rarely, “Oh, I will make an exception for this.” Then there is another call and just it is this constant sunk cost fallacy. So have some firm boundaries and do not make exceptions.  

Other experts believe that some unserious clients might simply be trying to get some free case evaluation. While this may occasionally happen, as long as experts are careful to note that they cannot give opinions without evaluating all the facts—which is impossible to do over a short phone call—the potential harm is comparatively minor. 

Step-by-Step 

Insurance expert Kevin Quinley offers a comprehensive look at initial phone calls: 

On the first call, be more on receive mode than send [. . .] Number two: ask good questions. What I mean by that is to assess your fit for the case, such as the universe of documents that need to be reviewed—that’s very critical. Is there a scheduling order on the case? If so, what deadline dates for work product do those present? Is there a conflict check? Is the subject matter area in your expertise area? Number three: It’s an audition, but don’t be too salesy—if they ask you about your bona fides, feel free to explore those. Be interested. Be engaged with your energy up. Do your homework on the case, if you can, beforehand. What I mean is this: sometimes you’ll get enough information on the case where in advance of that audition phone call you can either Google the case, or if it’s a federal case, go on PACER and look [it] up [. . .] Get all deadlines clear up front and don’t overcommit. [. . .] Be clear that you are not an opinion for hire. I always try to make clear that I won’t know what my opinions will be until and unless I review the materials, I don’t guarantee a favorable opinion—but if I can’t give one, I will pick up the phone, not write to you—pick up the phone and explain it to you, and set the ground rules in a follow-up engagement.  

Just the Facts 

Mr. Quinley warns against being overly salesy, while still establishing your credibility as an expert in your field: 

[It’s] a tightrope. You want to be confident, but I think less promotional and more descriptive of what you what you bring to the table [. . .] Obviously I’ll volunteer to send them after the call a copy of my current C.V., and then I’ve got a brief, one-page, professional biography that gives them the “Reader’s Digest” version [. . .]  I’ve written 10 books on such and such a topic. I have been a contributing editor to some of the training textbooks used by National Organization for training people in insurance claims. I’ve given 300 presentations. I’ve been engaged in 160 cases. I’ve testified in 50 plus depositions and 15 trials—so just to give them those, that’s factual. You know, it ain’t bragging if it’s true, but to be factual and to let them know what you know. But this is not a hard sell, [. . .] But I think that’s where you just factually [answer] if prompted.  

Sufficient Materials 

There may be facts or records that attorneys don’t realize are important to a potential expert witness. Marketing expert Robert Borders always double-checks:  

There are two things I do when I get the first call from Round Table Group or whomever. First, I ask, “Is this all that you have?” There may be more information—and the more information I have, the better equipped I am to help the attorneys and become their expert. As an expert, it depends on whom I’m talking to. If it’s the attorney I point out that I’m not going to talk about any of the legal issues, but there are some things that I believe are relevant and germane to this matter that you don’t know and here are some examples. Usually that ends up making what’s supposed to be a five-to-ten-minute call and turns it into a thirty-to-thirty-five-minute call. I have no problem doing that because I’m educating the attorneys to some degree. 

Initial Calls Save Time and Money 

Sometimes, a thorough initial call can quickly expose an engagement to be inappropriate. Failing to conduct one can be a costly mistake. Vocational Rehabilitation expert Merrill Cohen recounts:  

This is one of the cases that one of my bosses said, “Well, my colleague will do this for you.” So, we set up the case [. . .] This was a case of a young man who went to Alaska in the summer, did some fishing, and had an injury on a fishing boat. So, I didn’t really know anything about it. [The attorney] made the plans for [the client] to fly out from New York, where he lives, to meet with me in Washington state to get this evaluation going. Well, it turns out—and had we had an initial discussion, this would not have happened—that the guy was a college student who had kind of an upper arm injury. [It turned out] he’s not a fisherman and there’s no impact on his future earnings. [. . .] the lawyer was really mad that he spent all this money and [flew] him out, but he didn’t take the time to talk to us about what the case was—because had he spent 15 minutes, we would have said “no”. There was really nothing we could do to help. 

Free initial consultations are the most efficient and effective way to complete the vetting process. Return calls promptly, make sure your expertise is a match, and be as prepared as you can to make the best first impression.  

If you are interested in being considered for expert witness gigs, consider signing up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-831-3490 for more information or sign up now!