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You can pick
your friends and
you can pick
your . . . okay,
never mind that.
This column is
about picking
experts, a topic
that makes me
grumpy because
once I pick them
, I have to pay
them.
Still, no sense
being over the
top. It’s
just, I’ve been
okaying invoices
today and, ah
well, let’s just
say it’s put me
in a
philosophical
mood.
We all use
experts in our
cases. Sometime more,
sometimes less. They are a
necessary part
of what we do
and many of them
we love.
On the other
hand, we all
have our
“nightmare
expert” stories. There’s billing
nightmares: like
the prominent
witness who
freely runs up
charges at $750
an hour and then
doesn’t return
phone calls. Or the fellow
who charges full
rate for packing
and unpacking
his luggage
before and after
a trip. It
just makes you
want to sigh.
Then there’s the
testimony
nightmares: The experts who
show up
unprepared, or
unstudied, or
testify in
deposition
exactly opposite
to what they
told you during
the prep.
We’ve had them
forget to put on
their false
tooth before a
video depo,
I’ve watched
them walk up to
the stand with a
cane only to
leave it behind
on the return. Picture me, face
down in hands,
head shaking.
Now, I’m not
knocking the
large class of
hardworking,
professional,
knowledgeable
expert witnesses
who truly do
bring a benefit
to our cases. My point is, if
you aren’t
careful in your
expert selection
process, there’s
a real risk that
your case and
your client can
suffer the
consequence.
So, where
should you be
looking? Probably the
best way to
locate a good
expert is by
asking your
friends and
colleagues.
The idea is to
hunt for
referrals from
attorneys who
you know and
trust or, who
have litigated a
case similar to
yours.
O’Brien’s
Evaluator is a
good place to
start your
search, as is
the CAALA
Listserv or any
of the verdict
and settlement
reporters
published by
various
commercial
outfits. Don’t be afraid
to call up other
practitioners. One of the great
things about
plaintiff’s
lawyers is: we
share.
Take advantage
of that
generosity.
Of course, you
can always try a
Google search to
see if you can
locate someone
who has special
expertise or is
a recognized
leader in their
field.
Also, make sure
you also do a
Google search on
anyone you are
seriously
thinking of
hiring.
You can be sure
the opposition
will and it’s
amazing what’s
out there on the
internet.
Another good
source is the
community where
your case is
located.
I’m not just
talking about
physical
location here.
For example, I
have a case
against a law
enforcement
agency involving
various
allegations of
discrimination.
One of my
consultants is a
former
command-level
officer for that
department and,
when it comes
down to
declaring
experts, he will
likely end up on
my list. How’d I find
him? He
was someone my
client knew.
If I am looking
for an expert in
an unusual area
I might also
hire a resource
person to hunt
for me. Gerri Colton
springs to mind
(www.TechMedAdvisors.com).
She charges for
her time, but
sometimes it’s
worth it and
she’s been a
lifesaver for me
and my firm in
the past. There are other
resource people
out there. Ask around.
Don’t be afraid
to look closer
to home as well. Years back I had
an unusual case
involving an
Achilles tendon
injury during a
holistic
therapeutic
dance class in
Santa Monica.
It was not the
kind of case you
wanted to try.
But it was a
case that could
(and did)
settle.
My kids were
taking dance
lessons in the
Valley from this
nice, elderly
lady who had
been a dancer
and dance
instructor all
her life.
I asked her if
she’d take on an
expert
assignment and
she was
terrified at the
idea of having
to testify in
deposition, let
alone court.
Still, I knew
she’d be a
terrific witness
if it got that
far. She
was scared, yes.
But she was also
clear in her
views and spoke
about what went
wrong in that
dance studio
from her heart. I wish I could
say that about
every expert
I’ve hired.
Anyhow, I talked
her into taking
the assignment
and send out a
small retainer
to seal the
deal.
Armed with my
“expert,” I
confidently
headed for an
MSC and got a
nice result for
the client. My kids’ teacher
got to keep the
retainer and she
didn’t even have
to testify,
something for
which she is
grateful to this
day. Win,
win, all around.
I generally
avoid the paid
listing
services. My experience is
it just takes
too much time to
weed through the
candidates and
find the person
who is really up
to your
particular
challenge. Still, if you
get stuck, don’t
be afraid to do
some exploring.
Also, beware the
defense-oriented
expert who
masquerades as
being a balanced
analyst in their
field. Personally, I
like using
experts who
primarily
testify for the
defense. It helps drive
home the notion
that my case is
so strong it
doesn’t matter
who the expert
is.
However, there
are folks out
there for whom
the defense bias
is so ingrained
that they can’t
help favoring
the defendant’s
point of view,
even when
they’re retained
to testify for
the plaintiff. It’s not so much
that this sort
of witness will
not tell the
truth.
It’s more in
where their
efforts will
lie. A
defense oriented
expert might
avoid opening
doors to
inquiries that
would benefit
your client
simply because
they can’t
conceive there
would be
anything useful
to learn if
those doors were
opened. Not necessarily
a good thing.
Above all, take
care when you
hire your
experts. Get a complete
curriculum vitae
and grill them
on it. Get
references and
check them out.
Ask for any
disclosures
they’ve filed in
federal court
about their past
experience. Ask up front if
they have ever
been
disqualified as
an expert and if
so, what were
the
circumstances?
The bigger the
stakes, the more
due diligence
you need. The worst place
to find out
about your
expert’s
weaknesses are
in a defense
motion to
exclude or a
motion in
limine.
Okay, now that
I’ve got all
that out of my
system I feel a
little better. Experts, I love
you all, don’t
ever change.
Now, back to
paying bills. And I was in
such a good mood
there for a
minute.
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