PD&A - Three Common Errors Lawyers Make in Retaining Experts
Park Dietz, MD, MPH, PhD
Since 1996, when PD&A began operation as a formal group, lawyers have inquired about many thousands of cases, both civil and criminal. I’ve spoken directly to all of those who didn’t already know which experts they wanted to retain. While most of these lawyers were sophisticated about the use of experts, a surprising number seemed naïve about how to evaluate the fit between expert and case, how to judge hourly rates, and when they should retain. I share here some of the common errors lawyers make in seeking experts.
Literal Interpretation of CVs
We’ve seen lawyers reject the best expert they could hope to find based on a literal reading of a CV without speaking to the expert. Top forensic experts sometimes avoid publishing or lecturing about a topic with which they have vast experience to avoid being cross-examined on their prior statements, yet lawyers sometimes mistake the absence of a topic on a CV for inexperience in that area. Likewise, medical and psychological experts are trained and licensed to diagnose and treat any condition in their field, and experienced professionals have seen it all, yet lawyers sometimes mistake the absence of mention of a specific condition on a CV for inexperience with that condition. When you’re referred to an expert, it’s always best to interview that expert yourself to determine if the expert is qualified to undertake the assignment rather than assuming that a CV tells the whole story.
Mistaking Hourly Rates for Total Cost
This is an error common to lawyers, insurance carriers, and public agencies. Not all experts work at the same speed or use the same methods, so the hourly rate is only one of the variables that determine overall cost. Hiring a low-rate, ploddingly slow expert will cost more than a high-rate, efficient expert who has the experience and resources to use cost-saving measures. You can control the cost by working with your expert to frame the scope of the assignment accurately, providing well-organized documents for review, and providing guidance on the level of detail and documentation you want in an expert report. Will a 20-page report with a list of sources suffice, or does the case warrant a 300-page report with a thousand footnotes? You may even find an expert with so much intellectual interest in a case that the expert will accept a fixed fee or fee cap, which is always a losing proposition for a conscientious expert, but may be a winning proposition for the payer, as long as the expert is truly competent and conscientious.
Waiting Too Long to Retain an Expert
This has become by far the most common error. Sometimes this reflects replacement of counsel at the last minute, but we can only speculate on the other causes of this growing trend to seek an expert a month or two before the deadline for an expert disclosure, report, or even trial. The foreseeable results of this trend are unavailability of the best expert for the job, rushed work, increased stress for the expert who accepts the case, and larger monthly bills for work that should have been spread out over six months or a year. We pride ourselves on often accomplishing what seems like Mission Impossible, but this is far from ideal. For one thing, lawyers who wait to retain an expert until discovery is nearly complete lose the contributions the expert could have made to the investigation and preparation of the case, such as suggesting documents to be subpoenaed, witnesses to be interviewed, ordering tests that need to be scheduled long in advance, or drafting deposition questions. Another troubling consequence of late expert retention is that the lawyer may have locked into an offbeat theory of the case that has been incorporated into pleadings, motions, briefs, and other pre-trial litigation, only to find that the expert has a better theory that isn’t easily reconciled with the lawyer’s pet theory.