“Ten Common Expert Witness Mistakes … and How to Avoid Them”

By Kevin M. Quinley CPCU

“What Got You Here Won’t Get You There.” That was the title of a 2007 book by one of my favorite management authors, Marshall Goldsmith. It encapsulates a truism about running a successful expert witness practice. The skill sets that make you an expert witness do not necessarily arm you with the tools to run a successful expert witness consulting practice. Qualities such as subject matter expertise comprise the price of admission. In addition, qualified experts possess credentials, education, operational experience in their field of expertise, publications and presentations at industry forums. These are all positive qualities that qualify one as an expert.

However, they do not necessarily translate into running a successful expert witness or consulting practice. Instead, a modicum of business skills are needed to successfully transition from a “specialist” to a successful business operator. Expert witnesses are susceptible to mistakes that can hamstring their ability to successfully launch and sustain a profitable and solvent business. Let’s examine ten common mistakes and strategies for experts to sidestep potential pitfalls.

#1. Committing to an opinion based on nothing more than a phone call.

Some law firms may want your opinion before they retain you, based solely on a phone call. That is a red flag. No true expert will really know what his or her opinion is without reviewing the relevant materials. You can always give a general impression, with the clear caveat that you don’t know what your opinion would be until you have the materials. If a firm wants to know what you’re going to say before they pay you – that’s a red flag. Back away!

#2. Lacking clarity on the work product required.

Are you unsure as to whether the client will need a full report, as in federal court? Do they need a general description of your opinions? A detailed point-by-point disclosure? Are they retaining you as a consulting expert, behind the scenes or as a testifying expert, expected to give a deposition and trial testimony? Confirm that and make sure you’re clear as to what work product the client needs and its due date.

#3. Failing to codify retention terms through an engagement letter.

The letter protects not just you but the client. Always use an engagement letter. No pun intended, but this sets the “rules of engagement” regarding your hiring. This includes describing the engagement’s scope, billing procedures, hourly rates, disclaimers about case outcome, etc. Even if you have worked with a firm before, have a written engagement letter and get one on each case.

#4. Driving “outside your lane.”

Stay within your core area of expertise! No matter how tempting it may be to say “yes” and get a new case, if you’re winging it and don’t have subject matter knowledge in a particular area, opposing counsel will expose you at deposition or trial. This can not only be embarrassing, but quickly end your career as an expert. Be careful not to accept cases that are at or beyond the periphery of your expertise. Stay in your lane!

#5. Ignoring Dirty Harry’s advice.

Clint Eastwood’s character in these classic police movies often said, “A man’s gotta know his limitations.” Good advice for expert witnesses too. This is a resource issue, especially the resource of time. Unless you have figured out the secret to cloning, you’re just one person. When opportunities for new assignments arise, carefully evaluate those against the backdrop of all your other commitments. These include other pending cases, imminent deadlines, other business commitments for business development or for continuing education, personal travel and vacation, etc. While it is agonizing to decline new business, it’s more painful to get deep into a case and realize you’re out of your depth, about to be questioned closely at deposition or trial. Resist any temptation to take on more work than you can service in a quality fashion. It takes only one half-baked effort to nuke your reputation as an effective resource.

#6. Neglecting business development.

Feed the pipeline! This is a recurring challenge. When you are busy working cases, it’s seductive to believe that you cannot make time to develop business. Business is great, right? On the other hand, if you wait for a business lull before marketing, it may take a long time before you get another case. You can’t just turn it on like a faucet or pull a new case from the shelf, once you are no longer busy. Business development is a discipline that you must stick with, through busy and lean times. Every day, do something to develop business. Make that phone call. Send the email. Tweak your website. Reach out to a new contact. In business development, years can pass between planting the seed and harvesting the fruit. Plant seeds every day!

#7. Skimping on professional development.

You are so busy working cases and earning money that you don’t have time to attend continuing education conferences, read publications and white papers concerning your discipline or acquire professional credentials. This is a mistake. You need to keep current on developments within your niche. Don’t view continuing education as an expense, even though there is an opportunity cost in that you may be spending time or days attending conferences that you would otherwise spend working and billing. However, conferences provide useful networking opportunities, forging relationships which may culminate later in referrals. Also, it becomes tougher for opposing counsel to paint you as an out-of-touch “liar for hire” if you are still actively engaged in your industry through continuing education, conference attendance, speaking, reading articles and publishing.

#8. Ignoring aged receivables.

Watch these like a hawk. Make sure the engagement letter shows the amount of time clients have in which to pay you. Reserve the right to stop working on a case whenever payments fall in arrears. Don’t be shy about following up in a friendly way to see if the client or the bill-payer needs more information to process your invoice. Stay on top of aged accounts receivables to avoid a cash crunch. Consider pulling the plug or pressing the “PAUSE” button where you suspect you have a slow-pay client.

#9. Not reinvesting in your business.

This reinvestment can come in the form of computer hardware or software that will help your business run faster and more efficiently. It may come in the form of continuing education to amass further credentials. Is your professional resource library fully stocked? Are there some reference texts that could be handy? It may come in the form of attending a conference, which not only serves the purpose of continuing education but helps make contacts that could culminate in later referrals. Reinvest a percentage of your business income in tools or activities that help your business function faster, smoother, or deepen your expertise.

#10. Failing to periodically reassess rates.

Avoid being at the lowest or highest end of the market. In time, you can get a feel for what other experts are charging, if only because opposing counsel will disclose the CV and rates of the opposing expert. Review that person’s background, credentials and experience juxtaposed with his or her hourly rate. Compare it with yours as a benchmark. Are you in the same ballpark? Objectively speaking, do their rates suggest that you are under- or over-pricing? Has it been over a year since you adjusted your rate? Over time, everything costs more. Periodically reassess rates to determine whether you are shortchanging yourself. You may decide after such review to hold your rates firm. That’s okay. The point is to periodically gauge the adequacy of your rates to make sure that they are neither too low or too high.

So, the skills that make one an expert are not the same skills that enable you to operate a solvent, profitable and sustainable expert witness practice. Minefields and pitfalls abound. With the blend of subject-matter expertise and business savvy, though, you can combine the best of both worlds and take your expert witness practice to the next level!

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