by Gerry H. Goldsholle
Last year, ExpertPages released the Attorneys Survey Report, a key expert resource detailing how Attorneys search for, find, and interact with expert witnesses. The report contains survey data that points to attitudinal changes amongst attorneys with regard to experts and reveals that some long-held assumptions made by experts are no longer true. Overall, the data reveals that attorneys have become more demanding and more involved in what their retained experts do and how they do it.
The ExpertPages report uncovers data that is highly informative and useful, but the critical question for most expert witnesses is: “What can I learn from the data to help me enhance and grow my practice and generate more income?” Based on the data in the report, here are the key lessons I learned.
Here are the 7 steps every expert should take to enhance his or her practice.
1. Triple Check Your CV
If you think that nobody goes over your CV with a fine tooth comb, think again. ExpertPages’ survey shows that a majority (61%) of attorneys who consider hiring an expert Always (40%) or Generally (21%) check out the expert’s CV. And it’s important to remember that if an attorney sees something amiss – even a harmless oversight, such as not updating a resume to reflect you no longer hold a particular position, or a typo (which an attorney may regard as a sign of lack of attention to detail or carelessness) – that may disqualify you in the attorney’s mind. Attorneys who hire experts know any error, no matter how trivial, can be seized upon by opposing counsel who will characterize the error as a deliberate falsehood or evidence of sloppiness, making you seem untrustworthy or worse, sloppy. And that’s being kind. Get it right and update it frequently.
2. Expose Your True Self
Who are you? What do you look like? Do you speak clearly, composed, and with conviction? Attorneys definitely want to know. We know that because eight out of ten attorneys (80%) said that one of their most vexing problems in choosing a new expert is “Having a sense of the Expert’s appearance/demeanor at depositions or trial.”
Clearly, this is an issue for attorneys, and yet far too many experts rely exclusively on their CV and an outdated photo to reveal who they are and what they know. With relatively little cost and effort, experts can easily add videos to their profiles, giving prospective clients a better sense of how they might appear at deposition and/or trial. ExpertPages provides its members with an easy way to create and add videos to their profile pages. All you need is a video camera on your laptop, tablet or phone and an ExpertPages membership and you’re good to go.
3. Be Proactive On the Terms of Your Engagements
Do you have a written retainer agreement? If not, there are at least three excellent reasons why you should. First, attorneys, on average, are requiring signed retainer agreements in almost three out of four engagements (73%). Interestingly, their insistence on such agreements applies almost equally to experts that they have worked with previously, as well as to experts that they are engaging for the first time.
Second, and at least as important, if you do not have your own, you will undoubtedly be asked to sign an agreement drafted by the attorneys retaining you in the matter. Having your own retainer agreement helps you to protect your interests while also demonstrating your professionalism.
Third, a well-drafted retainer agreement need not cost you thousands of dollars. There are many good examples online, including at ExpertPages.com.
4. Set Your Rates Using Data and Don’t Cheat Yourself
Are your Rates (Hourly Fees) competitive with your peers?
Having rates that are too low may send a signal that you’re not as confident, qualified, or competent as others, while having rates that are too high – whether you set them too high or because a referral bureau marks them up – may eliminate you from consideration. In the ExpertPages 2018 Survey of Attorneys, we learned that attorneys drop consideration of a particular potential expert more than a third of the time (38%) because the expert’s rates were too high.
Do you know where your rates are in relationship to your peers? If you do not, referral bureaus, trial testimony transcripts, and your relevant trade association can be excellent sources of real data.
ExpertPages’ authoritative Expert Witness Fees & Practices Report also provides ExpertPages members excellent data on expert witness rates. ExpertPages has been conducting a biennial study that is the basis for this report for more than 20 years. Visit the Expert Witness Fees & Practices Report and download the page for a complimentary copy of the most current Executive Summary.
5. Communicate Clearly and Often About the Assignment, the Budget, and Your Bill
Attorneys reported that they think experts are guilty of “overbilling” in half (50%) of cases. Nothing can sour a relationship – and future referrals – more than an attorney thinking the expert is deliberately cheating them. Yet when ExpertPages followed up with attorneys, it turned out that most of what attorneys had regarded as “overbilling” was simply a result of the attorney and expert not having a clear understanding, in advance, of the anticipated budget and the nature and scope of the work the attorney expected the expert to carry out.
Not all cases are equal. While Attorneys always expect competence, they do not expect an expert to expend the same amount of time and effort in a relatively minor matter as would be required in major, high stakes litigation. Additionally, as circumstances often change as a case moves forward, and the potential for settlement always exists, attorneys expect experts to regularly confer with them as to where things stand relative to the agreed upon scope of the assignment and budget. Almost all of what attorneys otherwise might view as “overbilling” could be eliminated with good communication as the case moves forward.
6. Act Like a Businessperson, Not a Rock Star
We have all heard the stories of the extravagant requests that some Rock Stars demand on tour, and while they’re not that surprising, the out-of-pocket expenses demanded by some experts clearly are over the line. Attorneys reported experts insisting on First Class on all flights, including short hops such as NY to Boston or LA to San Francisco, and accommodations at ultra-luxury hotels with meal allowances to match.
One can only imagine how a plaintiff’s attorney, carrying these expenses in a contingency case, reacts to these requests, or how a defense attorney forced by the insurance company retaining her to fly coach and stay in a Holiday Inn Express would react. Many attorneys reported that an expert requesting above average (and not merely extravagant) expenses serves as a warning signal that this is an expert they don’t want to deal with, and simply look for an alternative rather than even try to negotiate.
7. Think Twice, Talk Three Times, Write Once
Experts would be well advised to ask the retaining attorney if he or she has any written guidelines setting out the procedures the attorney expects the expert to follow when reviewing material (such as keeping a log of each document the expert reviews during the course of the assignment) and preparing reports.
Writing too much, too soon, is also a potential problem that can be avoided, as more than four out of five (82%) attorneys reported having to ask their experts to reconsider, revise, or expand their draft reports. Once again, as discussed with the issue of billing, clear and ongoing communication between expert and attorney as to the effort the expert is expected to devote to preparing a written report, and what the attorney expects to be included in that report, could go a long way towards reducing any “surprises” when the expert’s draft report is delivered.
About the Author
Gerry H. Goldsholle – A practicing attorney, expert witness, and serial entrepreneur, Goldsholle is Founder and CEO of the Advice Company, a San Francisco area-based internet publisher whose properties include: FreeAdvice.com, ExpertPages.com, AttorneyPages.com, and SeniorCareAdvice.com.