SERVING AS AN EXPERT WITNESS: SOME PERSONAL OBSERVATIONS Robert W. Goldman

SERVING AS AN EXPERT WITNESS:
SOME PERSONAL OBSERVATIONS
Robert W. Goldman
Goldman Felcoski & Stone
Naples, FL
rgoldman@gfsestatelaw.com1
1
Special thanks to Lou Mezzullo who drafted most of this outline. His express permission to use the outline here
was a life-saver.
TABLE OF CONTENTS
Page
I.
Preliminary Issues ................................................................................................................1
A.
What Type of Matters to Accept ..............................................................................1
B.
Other Conflict Considerations .................................................................................2
C.
Getting Paid .............................................................................................................3
D.
Engagement Letters .................................................................................................4
E.
How Do You Qualify as an Expert? ........................................................................6
II.
Practical Considerations Once You are engaged .................................................................6
A.
Putting Things in Writing ........................................................................................6
B.
Reviewing Documents .............................................................................................8
C.
Keeping Track of What You Have Reviewed .........................................................8
D.
Assisting the Retaining Attorney .............................................................................9
E.
Preparing for Your Deposition.................................................................................9
F.
During your Deposition .........................................................................................10
G.
What Happens If You Change Your Opinion? ......................................................10
III.
Sample Engagement Letters ..............................................................................................11
A.
Mezzullo Form .......................................................................................................11
B.
Goldman Expert Retainer Letter ............................................................................14
ii
I.
Preliminary Issues
A.
What Type of Matters to Accept
1.
Retained by the plaintiff’s counsel in malpractice cases
a.
2.
3.
4.
5.
Your decision to accept may be based in part on who the defendant
is and who the expert for the defendant is.
(1)
Sleeping at night
(2)
Use of your testimony against you or your client in other
matters and other “buzzards coming home to roost.”
Retained by the defendant’s counsel in malpractice cases
a.
Usually more acceptable to firms and their insurers.
b.
But, here again, your testimony may come back to haunt you or
your clients.
Other types of cases
a.
Usually less of a push back from the firm.
b.
Again, the identity of the parties involved will have a bearing on
whether you want to take the case or your firm will let you take the
case. Fee cases come to mind.
c.
But, here again, your testimony may come back to haunt you or
your clients.
Identity of parties
a.
You want to be sure you feel comfortable testifying on behalf of
the party who is engaging you.
b.
You may not have the opportunity to know important facts about
the party engaging you when you are asked to accept the
engagement by the retaining attorney.
Who is the retaining attorney?
a.
Is the retaining attorney someone you feel comfortable working
with?
b.
Does the retaining attorney have sufficient experience dealing with
expert witnesses so that he or she doesn’t put you in an untenable
position?
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6.
7.
B.
What is the nature of the case?
a.
Is the subject matter of the case something on which you are really
an expert?
b.
Do you need to limit what you will be willing to opine on, based
either on your lack of expertise on one or more issues in the case or
on your inability to give a favorable opinion on all the issues
involved in the case?
c.
Do you have a business conflict? This is not just a concern that
your testimony may come back to haunt you. The corollary is the
chilling effect that concern may have on the quality of your
testimony?
Does the retaining attorney have a theory of the case?
a.
If the retaining attorney has no viable theory of the case, it will be
difficult for you to determine your ability to give the desired
opinions.
b.
If the retaining attorney’s theory is faulty, your task will be more
difficult.
Other Conflict Considerations
1.
2.
Ethical conflicts
a.
The issue here is whether the opposing party is a client of your
firm.
b.
Is the matter substantially related to the matter on which your firm
has represented the other party in the past?
c.
If the opposing party is a current client of the firm, it may be
necessary to get a conflicts waiver. Or, just keep it simple and
avoid this employment.
Business conflicts
a.
There may not be an ethical conflict, but for business reasons you
and your firm may not want you to accept the engagement.
b.
This may involve internal firm politics.
(1)
This may involve balancing the expected fees for serving as
an expert witness against any loss of good will from other
clients in the firm or future retention through other lawyers
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and clients, or even problems with the same judge in a
different case.
C.
Getting Paid
1.
How to charge?
a.
Hourly?
(1)
b.
2.
Other?
(1)
It may be advisable to charge a nonrefundable retainer fee.
See below.
(2)
I generally charge my normal hourly rate and charge an
upfront retainer fee, which is applied to hours.
Estimating the fee
a.
Sometimes I refuse to estimate a fee because it is usually
impossible to determine up front how much time is going to be
involved.
b.
I also want to feel free to spend whatever time I believe is
necessary to serve as an expert in the case.
(1)
3.
It will be difficult to charge on some other basis because of
the inability to predict at the outset how much time will be
involved.
This may require reading all the depositions involved in the
case as well as other documents.
Could you charge a different rate for serving as an expert witness?
a.
Justification for charging a higher rate according to Lou Mezzullo:
(1)
Charging a higher rate is justified in part because serving as
an expert witness does not usually result in having others,
such as associates and paralegals, working on the matter, so
there would be little or no origination credit for the work of
others.
(2)
Accepting the matter could also prevent accepting the same
case by your firm as the law firm representing the opposing
party, although the law firms involved are usually already
on board before you are contacted.
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(3)
4.
Should you get a deposit or retainer?
a.
Should some or all of it be nonrefundable?
(1)
D.
If you charge much more than your normal fee, your
testimony could be attacked as biased.
I provide for a nonrefundable fee, deemed earned, but other
experts do not.
b.
Some say it is important, from an ethical standpoint, to get the
deposit before you indicate whether you can give the retaining
attorney the opinion he or she wants. Otherwise, you may feel
obligated to give the desired opinion in order to get paid, which, of
course, is unethical as well as dishonest and could lead to
impeachment. I do not share this view. I am being paid to develop
and give my opinion and I get paid whether anyone likes my
opinion or not, which is reflected in my retainer agreement.
c.
You must make it clear up front that you will be charging for all
your time, regardless of whether you give the desired opinion,
although a good practitioner will know that and will want that
expressed in your typically discoverable retainer agreement.
Engagement Letters
1.
See examples of engagement letters at the end of this outline.
2.
Who is the client?
3.
a.
The retaining attorney or law firm?
b.
The party on whose behalf you are testifying?
Defining the scope of your engagement.
a.
Are you only going to be a consulting expert, or only a testifying
expert, or both?
b.
According to American Bar Association Standing Committee on
Ethics and Professional Responsibility Formal Opinion 97-407, a
lawyer serving as only a testifying expert has not established a
client-lawyer relationship with the party on whose behalf the
lawyer is testifying, although the lawyer may still have
responsibilities to the party under other law, such as the law of
client-lawyer privilege and the law of agency.
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c.
On the other hand, a lawyer serving as either a consulting expert or
as both a consulting expert and a testifying expert will establish a
client-lawyer relationship.
d.
Well, maybe all of that is so, but, in reality, the best approach is to
assume everything will be scene by all counsel and the trier of fact.
e.
Are you performing “legal” services?
(1)
4.
As an expert, hopefully you are not unwittingly providing
legal services to the party on whose behalf you are
testifying. That might make your firm and insurer unhappy
and create a bias that will be exposed on cross-examination.
In most jurisdictions and in most cases you cannot testify as
to the law.
f.
You may be opining on the standard of care in a malpractice case
or a case involving a fiduciary’s breach of his or her duty. You
may be opining on the reasonableness of a fee charged by a
fiduciary or an attorney. You may be opining on whether a
scheme of distribution would be a reasonable exercise of the
trustees’ discretion upon the termination or partial termination of a
trust, or on the division of a trust. Whatever the mission, try to be
clear in your engagement letter.
g.
If you are also acting as a consulting attorney, you may be
providing legal advice. Again, be clear. Generally, when I
consult, I do not want to be an expert witness. Why start out as a
consultant?
(1)
If you are initially designated as an expert, then arguably
everything you tell the retaining attorney and all of your
notes will be discoverable.
(2)
If you are initially engaged as a consultant, and the
retaining attorney decides not to use you as an expert, then
communications between you and the retaining attorney are
arguably privileged as attorney/client privilege or as work
product.
Malpractice insurance considerations
a.
Does your professional liability insurance cover you when serving
as an expert witness?
b.
What could you be liable for when serving as an expert witness?
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5.
E.
Holding yourself out as an expert without really being an
expert.
(2)
Negligence in not preparing to testify, either during your
deposition or during the trial, including not being prepared
with opinions at the time deposed. Will the lawyer who
hired you come to your defense since he or she may have
suggested you only look “at these two depositions”? What
other fantasies inhabit your mind?
When should the retaining attorney engage an expert?
a.
At the outset of the engagement.
b.
Only when the other party has indicated he or she is going to
engage experts.
c.
Is an expert warranted in every case?
How Do You Qualify as an Expert?
1.
Education.
2.
Experience.
3.
Other credentials.
4.
II.
(1)
a.
Writing
b.
Speaking
c.
Awards and Honors
(1)
Best Lawyers
(2)
Super Lawyers
(3)
Martindale Hubble
(4)
Chambers
But, in most modern jurisdictions, one need only have a modicum of
experience to qualify. Limited experience on the issue will go to the
weight assigned to your testimony.
Practical Considerations Once You are engaged
A.
Putting Things in Writing
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1.
2.
3.
Note taking
a.
Any notes you take will be subject to discovery and during your
deposition, you will generally be asked to explain your notes.
b.
This would include any notes or other types of marking, such as
highlighting or underlining, you make on documents you have
reviewed.
Correspondence with retaining attorney or attorneys or their staff
a.
Letters and emails will also be subject to discovery.
b.
It will generally be preferable to have telephone conversations
dealing with substantive matters, such as the development of your
opinion, with the retaining attorney or attorneys rather than putting
your premature comments in writing.
Memos
a.
4.
Memos you write will also be subject to discovery and should
generally only be prepared at the direction of the retaining
attorney.
Reports
a.
In some jurisdictions, an expert report will be required, in others it
will be optional.
b.
The decision will be made by the retaining attorney whether to do
a report when it is optional, but you should “own” your report.
c.
You will be questioned on your report during your deposition.
d.
(1)
It is imperative that you are able to explain every sentence
in your report.
(2)
Generally, you are not giving a legal opinion, but an
opinion based on applying the standard of care or other
standard to the facts in the case or at least the facts that you
assume are the facts in the case, based on your experience.
(3)
You are not a trier of fact, so you can assume the party on
whose behalf you are rendering an expert opinion is telling
the truth unless it is obvious that he or she isn’t.
The report should not cover issues you were not asked to opine on.
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5.
Declarations
a.
B.
Reviewing Documents
1.
In general, keep in mind that any notations you make on any documents
you review will be discoverable and you may be asked to explain them (or
why some items are marked and others are not).
a.
2.
Some experts do not make notations on the documents unless the
notation is clearly supportive of the opinion they intend to provide.
This, of course, suggests that everything not marked is not
supportive, which can lead to a dreadful cross-examination.
Pleadings
a.
Generally, you will want to review all the pleadings in the case.
b.
You should have a firm grasp on the legal theory the retaining
attorney has.
c.
You should also have a firm grasp of the relevant facts in the case.
d.
You may have to assume that the testimony and other statements
by the party on whose behalf you are testifying are true unless they
are obviously false (in which case, you probably need to withdraw
from the engagement).
3.
Depositions
4.
Other discovery materials
a.
5.
Generally, you should try to review all discovery documents,
including interrogatories and admissions.
Opining on assumed facts
a.
C.
In some jurisdictions, you may be asked by the retaining attorney
to file a declaration or affidavit in support of a motion the retaining
attorney is making.
You may be asked to opine on assumed facts; be sure they are
reasonable assumptions.
Keeping Track of What You Have Reviewed
1.
This is important because you will be asked to bring with you to your
deposition or trial everything you have reviewed; or you will at least be
asked to testify as to what you reviewed.
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D.
E.
Assisting the Retaining Attorney
1.
In many cases the retaining attorney will ask you to assist him or her in
analyzing the law as it applies to the facts in the case. If so, are you
practicing law for the client? Are you consulting and creating a bias?
2.
You will probably be more knowledgeable about the law than the
retaining attorney. Regardless, we lawyers are always tempted to “help.”
3.
The retaining attorney may ask you to assist in preparing for the
depositions of the experts for the other side. If so, are you practicing law
for the client? Are you consulting and creating a bias?
Preparing for Your Deposition
1.
An experienced litigator will spend time preparing you for your deposition
and trial testimony. That preparation should have less to do with direct
and more to do with cross. A good litigator will not expose you to a
thorough cross-examination during your deposition and school you in that
manner. Do not be lulled into a sense of complacency.
2.
You will be asked for each opinion you intend to give; be prepared to state
them clearly and succinctly.
a.
Don’t include opinions that you have not been asked by the
retaining attorney to give.
b.
Remember that if you fail to include an opinion that you will be
asked to give by the retaining attorney, you may be foreclosed
from expressing that opinion during the trial in direct examination.
c.
Being too supportive is often times a mistake and taxes your
credibility.
3.
You may also be asked to state the facts that support those opinions.
4.
You should determine if there is anything you have written or that has
been recorded about the issues involved in the case that could be used to
impeach your testimony and let the counsel who hired you know about
these matters.
a.
Hopefully, you will be able to distinguish seemingly inconsistent
statements you made earlier from you current opinion on the
issues.
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F.
G.
During your Deposition
1.
Do not let the lawyer deposing you get you into an adversarial mode.
2.
Be concise in your responses; do not make gratuitous statements.
a.
Unless the retaining attorney tells you otherwise, you are not to
teach the other side the law or your side’s theory of the case.
b.
In some instances, for strategic reasons, including supporting
settlement negotiations, the retaining attorney may want you to
demonstrate strengths of your side of a case.
3.
Talk slowly and do not nod your head when answering yes or no, but
articulate the answer.
4.
Be sure to allow a pause after each question to allow your attorney to raise
any objections and to collect your responsive thoughts.
5.
Above all, tell the truth.
What Happens If You Change Your Opinion?
1.
Of course, the first thing you need to do is to notify the retaining attorney,
preferably by telephone or in person.
2.
Hopefully, you have discovered new facts that affect your opinion and can
therefore justify a change in your opinion.
3.
It may be that the retaining attorney may have additional facts that causes
you to rethink you change of opinion.
4.
Hopefully, you communicated to the retaining attorney at the outset that
you may have to change your opinion based on your examination of the
facts (but not because you have changed your mind about the law
involved).
a.
You should be certain about the law before you give your initial
opinion about the issues involved; after all, you are supposed to be
an expert on the legal issues involved in the case.
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III.
Sample Engagement Letters
A.
Mezzullo Form
Joseph Smith, Esq.
1234 Main Street
Anywhere, CA 12345
Re:
Engagement and Fee Agreement
Dear Joe:
Thank you for choosing me to provide expert services to Smith & Jones, Inc. (“Retaining Law
Firm”) in its representation of Sally White (“White”) and related individuals in a dispute with
John Black and Mary Green, individually and as Trustees of the Green Family Trust dated
October 1, 2000, Case No. PRO 666666 and related individuals. As a partner of Luce Forward, I
provide all such services through the firm (sometimes hereafter referred to in first person plural),
and I use a short form of the firm’s engagement agreement for such services. We send this letter
to memorialize the terms of the consulting, and we ask you to return it signed to establish that it
is the contract describing that relationship.
OUR SPECIFIC ENGAGEMENT
Retaining Law Firm has asked for and I have agreed to provide certain expert witness services. I
will provide consulting services concerning issues of the duties of a trustee, as you define those
issues from time to time. I will prepare such reports as you request. I will prepare for and testify
at deposition and trial at your request. No partner or employee of Luce Forward is obligated to
provide any services except under my supervision.
I will report to you as the authorized representative of Retaining Law Firm. I will consult with
you as needed to assure timely, effective, and efficient progress of my work. I cannot promise or
guarantee the outcome of our consulting services or predict any opinion I will form based on the
record you provide me.
In addition to conventional landline telephone and means of sending hard copy, we anticipate we
will communicate with Retaining Law Firm by Internet e-mail and by cordless or cellular
telephone. If security of any of those forms of communication causes concern, please so advise
us in writing.
Retaining Law Firm agrees to provide me with the factual information and materials I require to
perform the requested services. Retaining Law Firm will make all legal services decisions
concerning representation of its client, White. Retaining Law Firm acknowledges it is not relying
on us for co-counsel legal services in representing White.
FEES AND EXPENSES
We establish an hourly rate for each attorney, paralegal and other clerks and staff who will assist
in the engagement. My hourly rate is now $___. Hourly rates are subject to adjustment and are
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generally increased effective as of January 1 of each year. White agrees to pay the increased
rates as of their effective date. We will bill you in tenth-hour increments.
In addition to our fees, we will bill White for certain expenses. A copy of an expense schedule is
attached to this Agreement. The expense schedule is subject to adjustment based on changes in
charges to us. It may also be appropriate to engage third-party providers to support our work for
White. In addition, we may incur other out-of-pocket disbursements such as travel expenses,
deposition fees, filing and recording fees, investigator fees, expert witness fees, and other
expenses we believe are necessary. We will either bill White for the charges or arrange with
White in advance for them to bill White directly. We have no obligation to incur or advance any
expense exceeding $250.00 unless reimbursement is secured by a trust deposit. White agrees to
reimburse us for those costs and expenses we advance, in addition to the hourly fees.
STATEMENTS
We will bill on a monthly basis. The statements will indicate the fees and costs incurred, any
amount applied from any advance deposit, and any current balance owed. We will make every
effort to include our out-of-pocket disbursements in the current monthly statement; however,
records of some disbursements are not immediately available to us and thus may not appear on a
statement until some time after charges were actually incurred.
All statements are due and payable upon receipt and are considered past due thirty (30) days after
the statement date. If White has any questions or concerns about a statement, please call them to
our attention without delay. If White does not raise any questions or objections regarding the
statement within sixty (60) days of the statement date, White agrees that White will be deemed to
have accepted and approved the statement, and thereafter will not be entitled to object to the
statement.
SECURITY
In order for us to represent White , we require an advance deposit in the amount of $_______.
The advance deposit will be held in our client trust account. The Firm may hold it and apply it to
the final billing rendered or may apply it to amounts owed in the monthly statements. We
reserve the right from time to time to request additional amounts or to request that White
replenish the advance deposit, depending on the continuing nature of our representation. This
advance deposit is not an estimate of total fees and costs, but merely an advance to be applied to
our billings.
CHARGE ON PAST DUE BALANCES
A charge of one percent per month will be added to all past due balances, commencing ninety
calendar days after the closing date specified on each statement. This charge represents our
reasonable endeavor to estimate fair compensation for our administrative expenses and the
expenses to the firm which will result from a default in payment of our statements when due.
This estimate is made because it would be impracticable or extremely difficult to determine our
actual damages. This charge does not delay the time when payment is due.
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TERMINATION OF ENGAGEMENT
We anticipate a successful and mutually satisfying relationship with Retaining Law Firm.
Nevertheless, Retaining Law Firm has the right to terminate this consulting services agreement at
any time. We may withdraw for good cause. Good cause includes any material interference
with my independence as an expert witness and any breach of either this agreement or the
obligation to pay our fees or expenses.
Subject to applicable law, Retaining Law Firm agrees to pay for our services and expenses up to
the time of any termination.
Any file we create or maintain for this engagement is Retaining Law Firm’s file. If Retaining
Law Firm wishes to have files or specific materials delivered after termination of our services, it
should so advise us. Otherwise, all materials will be transferred to our archives and ultimately
will be destroyed according to our records retention policy. In certain circumstances, we have
the right not to release our work product to anyone, including a client, and this agreement does
not waive that right.
DISPUTE RESOLUTION
We do not anticipate having any disagreements with Retaining Law Firm about the quality, cost,
or appropriateness of our services, but if any concerns about these matters arise, please notify us
immediately. We would endeavor to resolve any disagreements in a fair and amicable manner.
If it is not possible to resolve a dispute by agreement, Retaining Law Firm and we agree that all
disputes or claims of any nature whatsoever, including but not limited to those relating to our
fees and the quality or appropriateness of our services, shall be resolved by confidential binding
arbitration. Retaining Law Firm and we choose arbitration because it is usually less expensive
and quicker than litigation and will preserve all parties’ privacy. All parties agree that this is a
consulting services agreement, not an attorney-client fee agreement, so the attorney fee
arbitration statutes do not apply.
The place of the confidential binding arbitration will be in San Diego, California. Arbitration
proceedings may be commenced by any party by giving all other interested parties written notice
thereof, and the proceedings shall be governed by the California Arbitration Act (Code Civ.
Proc., § 1281 et seq.). The arbitrator must decide all disputes in accordance with that Act and the
rules of any arbitral tribunal mutually selected by the parties. The arbitrator shall have power to
decide all matters, including arbitrability and legal questions raised by pleading or summary
judgment motions. The arbitrator’s award shall be final and binding, and a judgment upon the
award may be entered and enforced by any court of competent jurisdiction.
The arbitrator must allow limited discovery to enable all parties to present their cases, but must
also be mindful of the parties’ shared desire to avoid the expense of broad discovery typically
allowed in civil litigation. Retaining Law Firm and we understand that choosing arbitration is a
form of waiving a trial by jury.
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GOVERNING LAW, SEVERABILITY, EFFECTIVENESS
This agreement is made and shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of California, without regard to the conflict-of-law principles
thereof, as the same apply to agreements made solely by residents of California and wholly to be
performed within California.
If any part of this agreement is held in whole or in part to be unenforceable for any reason, the
remainder of that provision and of the entire agreement will be severable and will remain in
effect.
APPROVAL
If Retaining Law Firm has any questions concerning our fees and expenses arrangements or
procedures, or the scope of the legal services we will provide, we will be pleased to respond. If
Retaining Law Firm finds that this agreement accurately states the terms of our engagement,
please sign and return a copy of this agreement. This agreement contains the entire agreement of
the parties, and no modification of the terms of this agreement will be effective unless set out in
writing and signed by Retaining Law Firm and by us.
Very truly yours,
Louis A. Mezzullo
of
Luce, Forward, Hamilton & Scripps LLP
Enclosure (Expense Schedule)
ACCEPTANCE AND APPROVAL
The above engagement and fee agreement is agreed to and accepted.
Date: ____________________
Smith & Jones, Inc.
________________________________,
Attorneys for Sally White
By:_____________________________
ITS: ____________________________
B.
Goldman Expert Retainer Letter
October 18, 2011
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Re: Estate of _________: retainer of expert witness
Dear Mr. ________:
You have asked me to serve as an expert to address concerns regarding
certain fee petitions filed in the estate of ________. This letter outlines our
arrangement.
As an expert, I am responsible for reviewing those materials you give me.
My opinions will be tailored to the questions ____________, P.A. (“the _______
law firm”) will pose. I am not responsible for developing the questions, just the
appropriate answers based on the material I am provided. In answering the
questions and otherwise serving your firm, I may need the assistance of other
members of my law firm. Therefore, this agreement is between the ________ law
firm and Goldman Felcoski& Stone, P.A.
My firm and I have no general responsibilities to the _______ law firm
regarding this or any other matter. Matters unrelated to this one will not be shared
with me or other members of my law firm; nor will my law firm or I otherwise be
placed in a position through our work on this case of being disqualified from
representing clients against other clients represented by the ________ law firm.
Further, the ________ law firm understands that I will only provide opinions
I feel qualified to give based on the material it provides me. My opinions will
reflect my honest assessment of the issues I am asked to consider--even if my
opinions are not consistent with your clients’ interests.
My hourly rate is $550. The following is a list of rates of other firm
employees:
Bruce Stone
$650 hr.
Deborah Goodall
$550 hr.
Brian J. Felcoski
$475 hr.
Jon Scuderi
$350 hr.
Andrea Stone
$200 hr.
Jo Atkinson
$130 hr.
Maria Juarez
$130 hr.
Jeanne Manuri
$ 85 hr.
Vivian Salazar
$130 hr.
Cristina Santeiro
$130 hr.
We expect to be paid monthly for our services upon submitting a detailed bill to
the __________ law firm reflecting our services. Our fee is in no way based on the
nature of my opinions or your success. Your firm is also responsible for any costs
incurred by me and my law firm, including, but not limited to, travel and document
copying charges.
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Finally, I have been given some records and I know the _______ law firm is
sending me more extensive records to review in order to get up to speed on this
case. I ask that you provide me with a $15,000 retainer, deemed earned and
payable to my law firm. This retainer will be applied against our initial billings
until it is exhausted. It purchases a slot in my 10 case list (I never take more than
10 cases) and is in recognition of my background and experience in the trust &
estate field and my knowledge of the amount of time needed to get started in this
matter.
With highest regard,
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