WWW.ALOA.ORG JANUARY 2024 KEYNOTES 49 Q: How long should I talk to the retaining lawyer during our first call? A: As long as you feel the need to. Some expert witness consultants have a very firm time limit regarding “first contact” with a lawyer, usually 15 or 20 minutes. But you will need to discuss the potential case long enough for both your potential client and you to feel confident that your expertise is appropriate for the case. At the end of the day, this conversa- tion is a job interview. If you feel you’ve demonstrated your expertise to the potential client — but the conversation seems to go on and on — you may need to professionally interject that you’ll gladly continue the conversa- tion, but you first need to send the lawyer your CV, fee schedule and contract (if you use one). At that point, he’ll have to decide whether he’s going to use your ser- vices or not. There is a fine line between establishing your value to the case versus an attorney extracting free advice from you. But only you know where that line is. If the lawyer decides not to use your brand of expertise, or if you feel the case isn’t in your subject matter expert wheel- house, so be it. But keep the conversa- tion professional even at the end. There is a good chance you have impressed the attorney enough that he may become a client in the future. Q: I’m on the attorney’s payroll now. Is the sky the limit on spending? A: You’d think so, but the answer is no … usually. It may be difficult to believe, but even an attorney has a budget for each case. And keep in mind that there are financial benchmarks established by legal prece- dent and sometime by laws regarding tort reform that many states have passed. The payout for someone who slips on a puddle on a floor and twists their ankle will not be awarded an amount of money similar to someone who fell, suffered a severe brain injury and now needs 24/7 care. So, if you’re working on a case that involves a relatively minor injury, don’t expect a completely open wallet when it comes to your hourly rate and expenses. Another thing to keep in mind is how you charge expenses. You may have heard the advice that you should “charge for every little thing.” The truth is that materials like notebooks, thumb drives, folders and other common office materials should al- ready be built into your hourly rate. Yes, if your lawyer for some reason requests your expert witness report on 20 thumb drives, charge away. Once you’ve sent your fee schedule to your attorney, that’s the time to discuss any potential budget that he may have in mind for the case. Q: I should send all my questions — and answers to questions — to the attorney by email, right? A: No! “No” is the simple answer to this ques- tion, unless the attorney specifically asks for correspondence via email. It’s im- portant to keep in mind that almost any written correspondence between the two of you is discoverable by the opposing at- torney. It’s prudent to discuss what infor- mation should and shouldn’t be emailed between the two of you, but most infor- mation will be discussed during phone or online meetings. Q: How often does my lawyer want me to call? A: Probably not as often as you think. Yes, it is important to bring your lawyer up to date on your research on a regular basis. The best way to do that is to sched- ule a meeting with your lawyer like you would do for any other appointment. This is an acceptable topic for email cor- respondence. Go ahead and email your lawyer but only to coordinate a meeting date and time. Usually, having a phone or online meeting once a month is suffi- cient for most cases, although you can ex- pect the frequency of meetings to increase somewhat as the attorney prepares for de- positions and the trial as those events get closer. Just be sure you do not record any of the conversations you and the lawyer have. That is an absolute no-no. Q: Am I a “consulting” expert witness or a “testifying” expert witness?” A: Your lawyer will know which one he wants you to be, but always prepare as if you’re a testifying expert witness. If you’re a testifying witness, you’re ex- pected to be able to write an expert wit- ness report. There is a high probability that you’ll have to endure a deposition and a very low probability that you’ll have to testify in a courtroom. On the other hand, a consulting expert witness generally only gives advice to the lawyer. Your name won’t appear on his list of experts, and you won’t be expected to write an expert witness report (or write anything else, for that matter). You also won’t be deposed or have to testify at a trial. But always do your research and prepare your notes as if you’ll become a testifying expert. The reason you always want to prepare to be a testifying witness is that you never know what will happen as the case pro- gresses, which could take years to run its course in most cases. Picture this scenario: A lawsuit was originally filed for a minor head injury during a traffic accident. A year later, the victim suffers a massive brain aneu- rysm, and the victim can no longer care
