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April 28, 2017 Practice Points

Vetting Your Expert Witness

By Florence Johnson

You have a case that requires expert testimony. Where do you start? Lawyers should be aware that there are number of services that assist with the location of expert witnesses, but knowing who to choose and why takes practice.

Always review the expert vitae thoroughly. Is the expert's schooling relevant? Do you have a doctor that is only a doctor of osteopathy and not medicine? Does the expert witness maintain current professional memberships? In medical malpractice matters and you are looking for causation expert or one to just opine on the standard of care? Ask does/did your doctor have hospital privileges anywhere? Does the expert have to meet any specific locality rules before being offered to the court? My jurisdiction has a persnickety rule that requires experts in medical matters to come from contiguous states. I suggest that you read some (all) of the experts printed works to decide if there are written speeches or published articles that could run afoul of anything in your case. Does it matter to your office if the expert testifies in more of one type of case or for one side in litigation more than another? Be truthful about what you are looking for in an expert and rest assured there will be one out there for your matter.

Ask for references from other firms that have hired the expert in the past. I have had to write more than a few references for experts that I have hired in the past and there a few more that I would have loved to critique but did not get asked. I have had candid conversations with other lawyers about certain experts that I was considering strongly and after conversing I did not hire them. Ask critical questions during these calls or emails and assure them that you will not discuss negative comments with the expert.

Read that Expert Retainer
Will the expert expect payment from the firm only? What are the terms and is the expense something that you can live with and better yet pass along to the client? Retention of Experts is costly and one mistake can tank your case. Expenses for expert testimony is a cost of litigation that increases yearly and having the ability to hire an expert is a luxury that should not be squandered. Most experts accept payment only from the firm that hires them and clearly advise in their retainer contracts that the contract is with the firm and not the client. The reason for this provision is that if payment is not made then the expert can sue the firm and not the client.

Retainer Essential Elements
Make sure there is a clear definition of the work for which you have retained the expert. What is the initial charge for retainer and what will you receive for it. When the retainer is, exhausted what notice is given to the firm and how often does one expect to receive billing. Most importantly how does the expert expect to get paid? What is the expert expecting once a bill is submitted regarding pay turnaround? Due on receipt or 30 days out? If you are lucky, maybe conclusion of the case?

What does the expert charge for deposition in person versus a telephonic appearance? Are you paying door step to door step travel expenses? Does the expert dictate lodging requests and airline requirements? Will you have to pay for trial testimony only or will the expert be paid if appearing each day even if not testifying, i.e. for preparation as well as trial appearances?

These are considerations for any practitioner so that you will get the most bang for your litigation dollar.

Florence M. Johnson is the principal attorney at Johnson and Johnson, PLLC, in Memphis, Tennessee, and the chair of the Practice Points Subcommittee for the Section of Litigation's Minority Trial Lawyers Committee.