What Makes a Perfect Expert?

The process of hiring an expert is something of an art and not so much science. The purpose of this article is to give candid advice to attorneys, insurance adjusters, and experts on the search, retention, and use of experts in insurance investigations and subsequent litigation matters. It has taken me over 33 years of being an expert to be able to adequately give advice to attorneys on how to hire such a person. As I near retirement age, I can advise without fear of antagonizing other experts -- or attorneys, for that matter.

Search Criteria

For many insurance and legal associates, the search for an expert begins with the Internet. But I have seen many times over the years that good expert recommendations come from inquiries made to other associates inside and outside of the office. What better recommendation can one obtain than one from your peers?

For those individuals who will be searching for and hiring experts, it is important to start an "expert file." Throughout your career, the expert file will change and have new additions and removal of those experts that fell short of your expectations.

When searching for an expert, it's important to keep the type of case in mind. If the potential loss involves some type of mechanical device failure, then a mechanical engineer is probably needed to evaluate the failure. But will just any mechanical engineer work for you and your client? Most profes-sionals have some sort of certifications that become a prerequisite for their retention by your firm or company. Let's take a look at a few certifications or licenses that these professionals should have when they are in the consulting business:

Fire Investigator

• Certified Fire Investigator (C.F.I.) (International Certification)
• Certified Fire & Explosion Investigator (C.F.E.I.) (National Certification)

Engineer

• Professional Engineer (P.E.) (State-by-State Certification)

Accountant

• Certified Public Accountant (CPA)

Safety Professional

• Certified Safety Professional (CSP) (National Certification)
• Certified Industrial Hygienist (CIH) (National Certification)

Toxicologist

• American Board of Applied Toxicology (ABAT)
• American Board of Forensic Toxicology (ABFT)

The degree earned by your chosen expert will follow him all the way to a deposition or trial. The degree should match the problem, i.e., chemistry degree for chemical issue. Obviously, advanced-degreed (Masters or Ph.D.) scientists or engineers will be more impressive to a jury, but these advanced-degreed professionals also come with a higher billable rate. It is important for the attorney or insurance professional to determine beforehand what the level of experience and education is needed (small loss or small subrogation claim), or whether advanced degrees are essential, since the opposition will bring a parade of advanced-degreed professionals in rebuttal.

The attorney or insurance professional must actually like the expert being retained. If you do not like him, chances are the jury will feel the same way about your choice. The chosen expert must be able to get along with multi-expert teams on complex litigation. Litigation is similar to a sporting event; the best team wins the event.

Using Experts

There are all levels of experience in any field. Experience can come at a price and it is, therefore, important to get your arms around the potential subrogation gain or insurance loss so that a valued decision can be made on the cost of the expert (generally in terms of billable rate). On a large subrogation loss, it may be natural to assume that a seasoned expert might be best to get the top recovery. On that smaller loss, however, the less-expensive expert may do just fine.

The selection and subsequent retention of an expert is not something to be taken lightly. The chosen expert may have to defend his actions at the loss site, survive a Daubert challenge, and then testify in deposition or live court trial for your case. On those more complicated cases, a seasoned expert may help the attorney or insurance professional on issues that they have dealt with many times previously. Some of my pet peeves surround spoliation-of-evidence issues. I routinely remind counsel during the site visit that potential defen-dants must be put on notice immediately to enable them the opportunity to investigate the scene and take evidentiary samples at the scene.

Report writing skills are not taught in physics or chemistry courses -- at least not legal reports that must adhere to various state or federal requirements. Retained experts must understand the difference between possible and probable. The Federal Rule 26 report has requirements that only a seasoned expert will include as a matter of fact. Reports need to be accurate and any boiler plate that is used by the expert needs to be scrutinized carefully for accuracy and pertinence to the case at hand.

The potential expert should be asked point blank if they have they ever been involved in a Daubert challenge. If the potential expert has been disqualified in a Daubert challenge, it will be nearly impossible to get that expert qualified and accepted in court to testify on his findings. There is one thing that can end the career as an expert witness and that is being disqualified in court or in a Daubert challenge.

Witness Economics
If I were to hire an expert, I would always ask for an estimated budget. Some experts do not like to deal with the financial part of the expert retention process, but it is absolutely essential for the attorney or insurance professional that the financial part of the retention be handled up front and properly. Budgets are not etched in stone and it is likely that your expert will contact you when he sees that the project will cost more.

Communication on financial issues is extremely important. There may be legal reasons why e-mail or other correspondence may be undesirable, but such documentation will help both the employer and employee when things go south after an unsuccessful investigation and retention. The seasoned expert is one who does not hesitate to tell you the truth. Generally, the more experience an expert has, the easier it is for him to realize that things are going south and to communicate that to the attorney or insurance professional.

Never hire an expert who will be paid from the settlement of the case. The expert retention must be clean and not contingent on the outcome of the case or his investigation. If the result of his investigation does not help you, then you have every right to find another and hope that he will see things differently for your client. An honest, up-front expert can actually save you and your client thousands of dollars.

Experts generally charge just like attorneys. Their fees are usually time and expenses, with billable rates ranging from $40/hour to well over $500/hour, depending on expertise and experience.

Avoiding Spoliation

Both plaintiff and defense attorneys have some defensive and offensive tools at their disposal. The one tool that seems to be getting a lot of attention these days is the issue of spoliation of evidence. Both sides in litigation use the tool when one side of the litigation challenges that they were treated unfairly by not having the opportunity to see the scene of the accident or view, photograph, and examine pertinent evidence at the scene.

The premise for spoliation is simple: "Since my expert could not view the scene or examine a given piece of evidence, we should be let us out of the litigation since we are at an unfair disadvantage." Judges are granting summary judgment on these spoliation arguments.

A seasoned expert witness should recognize such a problem early on in the investigation and should advise the attorney or insurance professional of the need to put other defendants on notice so that the spoliation claim is defused. Spoliation of evidence can occur not only by simply forgetting to notify possible defendants, but also by damaging or altering a given piece of evidence before the defendant has had an opportunity to view and examine the evidence.

In summary, the art of locating, hiring, and using an expert in your case should not be taken lightly. The success or failure of a given case may hinge on having the right expert in front of the jury, representing your client.