CREATIVE WAYS TO SAVE MONEY AND ENSURE VALUE WITH EXPERTS

Practice Tips From Matt Wetherington on Working With Experts

The mandate of the United States and Georgia civil justice system is to provide parties before the court with a “just, speedy, and inexpensive determination of every action.”[1] Prohibitive litigation costs, particularly from experts, undermines the “inexpensive” goal of the civil justice system. In most cases, discovery accounts for approximately 70% of litigation costs.[2] Within discovery expenditures, consulting and testifying experts often account for a majority of those costs. The National Center for State Courts just published a study demonstrating that counsel for an average automobile wreck case can expect to spend approximately $7,500 in expert fees.[3] For a substantial case, the amount quickly balloons to around $20,000. For complex litigation, $100,000 is considered ‘fair’.

Understandably, counsel would like to reduce the cost of experts. However, counsel is routinely fearful of not spending “enough” for fear of not having a properly developed case. This paper will detail some best practices for the use of experts that will reduce unnecessary spending, maximize the value received from retained experts, and reduce expenditures on opposing counsel’s experts.

Get an Expert Involved Early

Engaging an expert as soon as practicable enables counsel to vet the expert, receive vital guidance in the direction and scope of an investigation, benefit from a fully involved expert, and resolve the case sooner with maximum results. There is nothing short of a mountain of empirical and anecdotal evidence supporting this advice, yet a majority of litigants wait until after a complaint is filed and/or discovery is almost closed to hire an expert.[4] The benefits of hiring an expert early in the litigation process include the following:

Inform counsel’s assessment of what information is required to determine the viability and value of a claim, including categories of information that should be sought from third parties;
Identification of specific documents that should be sought in discovery to inform their opinions;
When deposing non-expert representatives of corporate defendants, experts can detect technical but uninformative answers and can suggest additional questions to expose flaws in testimony;
Allows expert to be involved in the development of case theory, rather than working to fit opinions into positions counsel has already established;
Expert will be more knowledgeable about the case, which will breed investment in the case and confidence in opinions at deposition or trial; and
When there is a small population of experts, the early bird gets the worm.

Finally, while the while the expert should be brought in early in the process, counsel should advise the expert not to reach any conclusions until the full fact record is developed. Experts may keep notes on early thoughts and considerations that may not be protected from discovery. As these thoughts develop into full opinions, defense counsel may argue that inconsistencies in the paper record indicate flip-flopping or being a hired gun. Help the expert avoid this pitfall by advising him to put a disclaimer over written notes indicating when the notes were taken.

Make the decision to inspect/examine the scene & vehicles sooner rather than later. The “black-box” data is out there on most vehicles and is easily obtainable. It may seem costly, but it is cheaper than trying to use photogrammetry at a later date and can certainly cost you later if there is a lack of supporting information or a spoliation claim.

-Jeff Kidd, Collision Specialists, Inc.

Properly Vet the Expert

Finding an expert is easy. Finding an expert who will help counsel find a smoking gun, survive Daubert, and win jurors’ trust at trial is hard. The importance of a good expert cannot be overstated. “The outcome of trial often hinges upon the likeability, credibility and communication skills of one or more star expert witnesses.”[5] Very few cases can sustain the loss of a key expert witness and in complex litigation, the loss of a star expert can be fatal. Call attorneys who have used the expert before and ask for a candid opinion. Also, research the potential expert online to see if the expert has been at the center of significant litigation and what promotional material he or she has published online. Thorough due diligence on the credentials, personality, and litigation history of an expert can reduce the risk of investing significant time and money in an expert who is not appropriate for a case.

Gather documents and manage expert logistics in house

Simply because counsel engages an expert early does not mean that counsel should abandon his or her investigation of the case. The acquisition, organizing, and summarizing of relevant documents constitutes a significant portion of most expert’s time. Counsel can avoid the expense of having an expert obtain documents and information by gathering the documents internally. Once the documents are obtained, use a service like Dropbox or YouSendIt to electronically transfer the files to the expert instantly.

Discuss who will be responsible for travel arrangements. If you hire me and want me to travel to Colorado and you want me to book my plane, hotel, and get everything done—you get charged for that time. I would prefer attorneys handle all of the logistics after getting a departure time from me.

-Sean Alexander, Crash Analysis & Reconstruction, LLC

Medical Records

For most firms, it is standard practice to gather medical records and bills. Some firms also have an in-house medical professional review, organize, and summarize the medical records. Medical chronologies and summary reports can drastically reduce the time experts spend reviewing the file. When in-house personnel is not available, counsel should consider a third party service that specializes in reviewing medical records at a fraction of the cost of an expert.[6] Many vendors will produce complete chronologies with indexed PDF files that are internally linked to the actual records and can be sorted chronologically or by provider. Average rates vary from $30-90 an hour, depending on the scope of services rendered. Adventurous counsel can use remote contractor (outsourcing) websites like Odesk.com or Elance.com to find medical professionals in other countries who will perform the initial work of gathering, organizing, and reviewing medical records at substantially reduced rates.

In addition to reviewing medical records, there are also services that will identify and acquire medical records above and beyond those disclosed by the client. Many defense firms are turning to these services to uncover evidence of preexisting injuries. Therefore it is now more important than ever for counsel to obtain all of the client’s medical records. For example, KEAIS (www.keais.com) will produce a complete discovery report of available medical records for $239. KEAIS can also organize and review the records for an additional fee. Under some circumstances third-party vendor expenses are client reimbursable.

When there is a spirit of cooperation among counsel, it is also possible to use a service like Medical Research Consultants (mrchouston.com), which can facilitate the sharing of costs associated with the acquisition of medical records, lien information, and record organization. Plaintiff can order the records online and then invite Defendant to share the cost of obtaining the records with immediate download online. Defendants like this because even when the Plaintiff objects to producing a record, the disputed documents are readily identifiable.

Wreck Reports and Supporting Documents

Many states, including Georgia, have contracted with third parties to maintain wreck reports online for immediate acquisition. Counsel can now download a wreck report while talking to a potential client for the first time on the phone for less than $15 at buycrash.com. Follow-up with an open records request to the appropriate agency to obtain any supplemental or draft reports, witness statements, video, photos, and/or criminal investigation files.

Search for Product Recalls

When investigating a potential products claim, counsel can quickly determine whether the product has been recalled or if a recall is likely in the future. For vehicles and child seats, the National Highway Transportation Safety Commission (NHTSA) has a great website for searching recalls at www.NHTSA.gov. However, counsel should not stop his or her search with only recalls. The website also contains information on investigations, complaints, and service bulletins, which may indicate common problems, other similar incidents, and other data that will help to focus the scope of an expert’s investigation or reveal the need for an additional expert(s).

For non-automotive products, the Consumer Product Safety Commission is charged with investigating and administrating recalls. Visit http://cpsc.gov/en/Recalls/ to view recalls and perform the same research.

Search a Business for Prior Incidents

The Occupational Safety and Health Administration (OSHA) is a well-known resource for worker’s compensation practitioners. The OSHA website can also be useful for investigating a business, location, or particular incident outside of a worker’s compensation context. A FOIA request is required for access to many documents, but a basic establishment search can turn up some helpful results for potential labor/manufacturing issues and/or other similar incidents.

Counsel should file his/her own open record requests to all agencies and for all documents, photographs, videos, etc. We have a protocol to mass file ORR on all new cases and our clients pay for the time to file such requests when the work is not already done. We want to ensure that we have all the available materials before we develop opinions to prevent being bitten later by a recorded statement that we failed to review.

-Jeff Kidd, Collision Specialists, Inc.

Streamline the Case:

Seek a Scheduling Order from the Court

Unnecessary delays in the resolution of a case are a significant drain on time and money. These delays and costs directly reduce access to the civil justice system for many individuals and business owners. A 2010 study commissioned by the Judicial Conference Advisory Committee concluded that “a 1% increase in case duration is associated with a 0.32% increase in costs for plaintiffs and a 0.26% increase in costs for defendants.”[7] Similarly, a study through the University of Denver confirmed that continuances have a substantial impact on expert spending.[8]

The experts polled in the study reported the following based on “one or more continuances”:

2% reported no impact;
20% reported a 10% increase in time spent;
44% reported an 11-25% increase in time spent; and
32% reported a 25%+ increase in time spent.

An effective remedy for continuances is to seek the entry of a scheduling order early in litigation. Counsel cannot control the schedule of the Court, and some delay is inevitable. However, cases that have a scheduling order resolve sooner and cost less overall.[9] In addition to reducing the time spent in litigation, a scheduling order will also facilitate communication between counsel and the expert regarding deadlines and expectations. Most experts identify poor communication as the primary cause of unexpected bills, poor case preparation, and general frustration between counsel and experts.

Most expert reports contain lengthy descriptions of the subject incident and a section titled “Review of the Medical Records” which essentially repeats material in the medical records. While reviewing these records will be informative for the expert, I see little need to summarize them in the report when a simple statement indicating the material reviewed will suffice. Writing these summaries delays submission of the expert’s report and increases the cost.

-Walt Austin, Professor of Accounting, Mercer University

Consider Video Conferencing

Video conferencing has seen a dramatic rise in popularity over the last decade. Case studies tracking the increase in financial and time savings due to video conferencing reach staggering conclusions. Businesses that utilize video conferencing almost universally recognize substantial cost benefits and increases in efficiency.[10] There is no question that deposing and preparing with experts (and other witnesses) via video conferencing will save a tremendous amount of time and money. However, these savings may come at an unexpected cost.

Recent human behavior studies on the use of video instead of in person communications offer insights that are not obvious.[11] Deponents appearing via video conferencing are generally more comfortable and confident in opinions provided. Thus, it can be advantageous to encourage video deposition of your own experts. However, when dealing with opposing experts, counsel should consider whether the expert will appear live or by video at trial. It is much harder for counsel to gauge the presence and likeability of an opposing expert who will appear live when a meeting occurs via video conference.[12] This is because heuristic cues (such as how likeable a speaker is) are exaggerated via video. This perception difference may be advantageous when a deponent will only testify by video, but when deposing an opposing expert who will appear live at trial, in personal depositions are advised.

Streamline Expert Depositions

When taking an opposing expert’s deposition, resist the temptation to cover the waterfront and limit questions to substantive issues. A 2012 University of Denver study found that almost 50% of expert deposition time is not spent on substantive issues.[13] Targeted discovery and depositions will help everyone. Have a plan and specific goals for each expert deposition and stay on track. If counsel wants to highlight a specific part of an expert’s background for Daubert purposes, simply get to the point and rely on the expert’s prior testimony for information on his or her general background and qualifications.

I believe that the deposition is the only process to gather information prior to trial, but 2 hours on an opposing experts qualifications really gets expensive. If they have the CV, pick and choose what information may be pertinent and move on. If it takes 7 hours to take the deposition, how long is it going to take the expert to read it?

-Jeff Kidd, Collision Specialists, Inc.

Streamline Expert Testing with Failure Modes and Effects Analysis

Finite element analysis (FEA) is a computer simulation technique used in engineering analysis. It uses a numerical technique called the finite element method (FEM). For years, product manufacturers have been using the concepts as part of failure modes and effects analysis (FMEA) in creating new products and designs. In particular, every single auto manufacturer use FMEA in the design of components big and small. In many cases, no physical testing is ever performed before a product is cleared for production. This includes components as significant as the roof, with manufacturers like Ford.

Counsel should consider using FMEA in lieu of live testing because it is faster, cheaper, and often produces better results than live testing. FMEA offers a variety of benefits including:

Less expensive than live testing;
Richer data is creating by FEA about the interrelationships of connected systems;
Testing errors can be fixed immediately at minimal cost;
Provides an additional foundation for biomechanical testimony; and
Impressive graphics of alternative designs and testing methods that can be easily used as trial exhibits.

Attorneys are just as educated and as smart as engineers/experts. During your case review keep your eyes open for things that are not explained by common sense.

-Matt Wood, InSciTech Inc.

Bring the Expert to Mediation

Although bringing an expert to a mediation sounds like a great way to incur additional expert expenses, there is a tremendous value in having an expert present at mediation. New case theories or factual allegations are frequently raised for the first time during a mediation. An expert who is present or immediately available can prove the difference between settling the case and spending thousands of dollars on continued litigation. An expert can provide additional information to a mediator when requested or rebut factual or scientific questions before they gain traction in opposing counsel’s meeting room.

In my experience, being present at a mediation has substantially reduced the time fighting over easily resolvable issues and addressing case theories introduced for the first time during a mediation presentation.

-Sean Alexander, Crash Analysis & Reconstruction, LLC

CONCLUSION

The guidelines discussed above are just a starting point for reducing the cost of experts. There are a variety of excellent resources cited throughout this paper and it is our hope that your next case will resolve sooner and at less expense without sacrificing value.

NOTE: This article was originally published in 2013 through the Institute of Continuing Legal Education in Georgia, Expert Testimony in Georgia

[1] FED. R. CIV. P. 1; O.C.G.A. § 9-11-1.

[2] Institute for the Advancement of the American Legal System & American College of Trial Lawyers, Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System 10-11 (Mar. 11, 2009) (rev. Apr. 15, 2009).

[3] Hannaford-Agor, Estimating the Cost of Civil Litigation, National Center for State Courts, Volume 20 (January 2013).

[4] Brennan, Niamh, Accounting Expertise in Litigation and Dispute Resolution, Journal of Forensic Accounting, VI (2): 13-35 (2005); Hannaford-Agor, Estimating the Cost of Civil Litigation, National Center for State Courts, Volume 20 (January 2013).

[5] McCreary, Lynn and Singh, David, Winning the “Battle of the Experts” While Keeping Fees under Control, Corporate Counsel, ABA Section of Litigation (September 27, 2012).

[6] When using a third party contractor, ALWAYS take steps to protect the private medical records of your client and get permission from the client prior to engaging a contractor when appropriate.

[7] Emery G. Lee III & Thomas E. Willging, Litigation Costs in Civil Cases: Multivariate Analysis, Report to the Judicial Conference Advisory Committee on Civil Rules, Federal Judicial Center, 5, 7 (March 2010).

[8] IAALS and AICPA, Another Voice: Financial Experts on Reducing Client Costs in Civil Litigation, University of Denver, (September 2012).

[9] Lande, John, The Movement Toward Early Case Handling in Courts and Private Dispute Resolution, Ohio State Journal on Dispute Resolution, Vol. 24, p. 81, (2008).

[10] Davis, Andrew, The Business Case for Video Conferencing, Wainhouse Research (2005).

[11] Ferran, Carlos and Watts, Stephanie, Videoconferencing in the Field: A Heuristic Processing Model, Management Science, Vol. 54, no. 9 (September 2008).

[12] The Case for Face-to-Face, Forbes Insights (2009).

[13] IAALS and AICPA, Another Voice: Financial Experts on Reducing Client Costs in Civil Litigation, University of Denver, (September 2012).