The ABC’s of the Three C’s

Vol. 14 No. 1

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Managing client expectations, specifically when more then one group is involved, requires basic skills. In professional practice both counsel and consultant are tasked with addressing and satisfying the clients’ needs effectively and efficiently. Learning the “how-to-do’s” of the Client, Counsel and Consultant relationship can be as simple as reciting the alphabet.

The following is a list of do’s and don’ts — when followed, promote common sense expectations in the Client/Counsel/Consultant relationship:

A.    Do discuss any "conflict" issues, even if not enough of a conflict to disqualify the consultant.

B.    Do establish reasonable expectations concerning the nature and extent of the analysis that is required. The consultant should then provide counsel with a project understanding, scope of services, a planned schedule or time that it will take to perform that analysis and the estimated costs that will be incurred.

C.     Do present counsel with proposed staff for both fact and/or testifying experts. Additionally, if the testifying expert is different than the fact expert he/she should be involved from the inception of the matter, working hand-in-hand with the fact expert. Be clear which services are being provided as a consulting-but-not-testifying expert, which services are being provided as a testifying expert and when, if at all, that role changes during the project.

D.    Do give the consultant access to any and all documents and the opportunity to review all available materials.

E.     Do know the client . . . who is in “charge” and/or who is the “boss”.

F.     Do give counsel a timely and accurate response to all queries and work-product goals.

G.    Do give an impartial analysis. The consultant’s role is to evaluate the records and figure out if the "story", as presented by the client, is valid and defensible. Counsel’s role then is to best represent the client and thereby achieve an optimum outcome.

H.    Do be entirely honest with counsel and, counsel with client. Do not shade views, opinions or thoughts in an effort to make the case better.

I.      Do create a "roadmap" for work to be performed by both counsel and consultant. Do discuss the various approaches and methodologies that can be used and which is most appropriate to the issues.

J.      Do plan on an initial oral report. An open and frank discussion will aid in the ultimate case strategy. And, do decide what will be done with drafts when the report proceeds to the written format.

K.     Do meet the deadlines and if, for some reason, you cannot do so, then inform counsel well in advance.

L.     Do turn work around timely. A consultant who presents a draft a week before the due date allows counsel time to review, edit, and finalize.

M.   Do be on time for meetings and dress appropriately for both team and client meetings.

N.    Do stay in touch – return phone calls promptly and do not simply rely on e-mail - no matter what, do not become the "disappearing" expert or attorney.

O.    Do not get other consultants involved in the project without notifying counsel and getting approval, if doing so will impact the budget.

P.     Do manage the client’s resources to expectations. Prepare budgets and what is included in the budget – i.e. exhibits, coding, charts, et cetera. This is important to discuss and to periodically revisit with the client.

Q.    Do not over spend the estimated budget without advance notice and discussion of possible revisions to the budget. Relevant to the budget and expenses: do ask/recommend hotel recommendations when traveling to offices or when you are meeting in a neutral city.

R.    Do stay within areas of expertise and do not overstep the role. Do limit the scope of the expert report to the factual issues and analysis that fall squarely within the consultant’s discipline.

S.     Do not puff up credentials or resumes.

T.     Do stay on point; do not load the report with "fluff".

U.    Do proof read, proof read, proof read - typos or other errors in the work product must be avoided, even in "drafts".

V.    Do be careful what you write down — in particular not the things that counsel may say in confidence and especially not anything that could adversely affect the outcome for the client.

W.  Do make counsel's work easy - plan the points for the direct testimony (after discovery is over so the documents are not discoverable), and identify the trial exhibits that will be referenced.

X.     Do memorize and practice - for deposition and trial. The consultant must be able to identify what documents were reviewed (preferably with specificity or by Bates No., rather than by category), who was interviewed, when and about what issues, the source of any factual information relied on by the consultant, and any assumptions made by the consultant (and why).

Y.     Do not underestimate opposing counsel or opposing consultant. No matter how unprofessional or amateurish an opposing work product might appear, review it seriously rather than simply dismissing the report as off-base or missing the point. Both counsel and consultant will need to take the time to strip away the clutter so that the team can discern what the opposing expert is saying and respond accordingly.

Z.     Do prepare, prepare, prepare. Deposition and trial preparation is serious, hard work. In the end, everything done prior is meaningless if the testifying expert cannot deliver the “message” eloquently and clearly in deposition or at trial.

We hope these ABCs will spell out a smooth and successful resolution — with the matter completed in the clients’ best interest.


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