Expert Timing: When to Retain Your Expert

Episode Notes

Transcript

Michal Rogson:

Roundtable Group is a premier sponsor of the ABAs section of litigation. On this Litigation Radio episode, we will hear from attorney Monica Poole, director of Expert Witness Services at Roundtable Group about the importance of timing in your expert search. The selection of Roundtable Group as a subject of this interview should not be construed as an endorsement by the American Bar Association of the Roundtable Group and its services. Hello everyone and welcome to Litigation Radio. I’m one of your new hosts, Mic Rogson, and this is my very first solo podcast. So let me just say how excited I am to be here and how grateful I am to my predecessor, Dave Scriven Young for doing such an amazing job, helming this podcast for the last four years. My background is in insurance litigation, but I’ve been in-house for many years. At this point, I’m currently vice president at Skyward Specialty Insurance Company managing their national court bond practice, and I’m an expert in the litigation and fiduciary bonds that are often needed across the spectrum of litigation.

On this show, we talk to the country’s top litigators and judges to stay abreast of developing trends in litigation and discover best practices in developing our careers and building a sustainable practice. If you’d like to stay up to date on future episodes, please be sure to subscribe to the podcast on your favorite podcasting app. This podcast is brought to you by the litigation section of the American Bar Association, which is where I make my home In the A BA. Not only is ABA Litigation Section an inviting and supportive community of highly talented litigators, it also provides litigators of all practice areas, the resources we need to be successful advocates for our clients. You can learn more at ambar.org/litigation. Now, hopefully you all joined us for the three-part series we ran last year on how to best identify and retain your expert witnesses, but today we wanted to talk about something very specific and critically important to this process timing.

When do we need to start thinking about finding and retaining our experts? Are there disadvantages to starting early and what should our considerations be in making these decisions? Our guest today who will guide us through these strategic considerations is Monica Poole. Monica is the director of Expert Witness Services at Roundtable Group, which helps lawyers and law firms find and retain expert witnesses for their cases. Monica has over 30 years of experience in the legal industry ranging from practicing attorney to sales executive of legal solutions, products and services. Welcome, Monica. Thank you so much for having me. I’m very excited to be here. We are thrilled to have you here as well. So I’m curious, just as a rule of thumb right up front, when should you start looking for your expert?

Monica Poole:

Well, the general rule of thumb should be the earlier the better, but there are a lot of factors to think about and like in every situation you may have exceptions. So I’m very excited to discuss about things that we need to think about.

Michal Rogson:

I would have to assume as someone who’s been on both plaintiff and defendant’s sides, that the considerations would be different depending on which side of litigation you’re on. So I would suggest if we can, let’s start on the plaintiff’s side and let’s take a look at that. If you are on the plaintiff’s side, when should you begin looking and why?

Monica Poole:

Well, it depends on the type of litigation. The more complex, the earlier you need to search, if it’s some type of litigation that you do over and over again and you’re very familiar with the issues, that would be a consideration where you may start a little bit later, but generally plaintiff’s counsel will want to engage an expert prior to filing a complaint to help gauge the strength of the lawsuit. Most common example is personal injury. Some plaintiff firms will have a medical staff, a nurse on staff to evaluate cases before they actually file complaints. If your firm does not have a medical staff, this is an area where you would hire an expert to review claims and consult on the strengths of the case because you may decide it’s not worth litigating. Same for the plaintiff’s class action, but on a much larger scale, usually it’s a whole litigation team that you put together before you file a class action and often multiple experts will need to be hired to help counsel evaluate again the strengths of the case and the different cause of actions they may want to consider.

Michal Rogson:

So it sounds like from the plaintiff’s perspective, because lawyers are expert in litigation and not necessarily in the context of the cases that they’re going to be litigating, they should be thinking about using experts to educate themselves on the context and help them in fact determine whether they’re going to proceed with the litigation and also in drafting the complaint specifically, I mean what is, because they’re going to have to justify this expense upfront to their clients, how can they explain the advantages of that?

Monica Poole:

Well, I think a good example to put this in context right now, AI is a hot topic, but it is also a very technical term that involves algorithm and complex math and actually learning and teaching ai. And there’s all these concepts that are floating around that attorneys may not understand and their clients may not understand. And then we have a lot of litigation currently going on about data and privacy, face recognition, palm prints at your local whole foods, all these privacy issues are being discussed in every state legislation and the federal government right now, how are we going to regulate it? And they’re constantly changing every month as well. So by hiring an expert who has a pulse on maybe regulation as well as a technical expert and professors are great for this, that can quote dumb down the technical lingo so the lay person can understand the technology behind it. When you piece those two expertise together with a expert on the legal action, then you create the perfect storm to file your complaint and think about your strategy.

Michal Rogson:

So the advantage to retaining the expert on the plaintiff’s side even prior to drafting the suit itself, the complaint is that you are increasing the likelihood of the complaint being successful, right? Citing causes of action that are going to be compelling once the court understands the context and the industry in which the litigation is taking place and increasing the likelihood of success for the client.

Monica Poole:

Exactly. And then by starting early as well, going back to ai, you are going to have your pick up the best experts in the country because you haven’t filed yet. So you are really the only one searching so you can talk to the right person and find the right person without that competition from your opposing counsel.

Michal Rogson:

That brings up an interesting point because we’ve been discussing the strategic advantages to finding an expert early, but there are also practical advantages,

Right,

Which is the lawsuit hasn’t even been filed, no one needs that. No one knows quite yet that they need to be finding these experts except for you. So you have your pick of the experts starting early. Probably also gives you an advantage in terms of timing generally because it can take time to find a good expert.

Monica Poole:

Exactly, yes. Another example you may want to consider is just a breach of contract case. And you may think, oh, a breach of contract that’s standard. You read the contract, it’s all in there. But there’s different terms used in different industries that mean unique definitions for that industry. And there’s also complications in different industries that you may not be aware of. For example, semiconductors, there’s a supply chain issue. There’s unique definitions in that term. By talking to a semiconductor industry expert prior to filing your complaint, you’ll have a better context of the big picture and how everything fits in

Michal Rogson:

Well, if we can use the experts not only as plaintiffs, not only to help us craft our complaint, can we also use the experts to help us craft our discovery demands?

Monica Poole:

Definitely an excellent example of that is in the environmental litigation, experts will know what regulations, what reports are required by the EPA, and those reports can have a lot of data in them that would be necessary for you to find out during discovery. And if you haven’t gotten an expert in place, you would never know to ask for those type of discovery items such as an EPA report.

Michal Rogson:

And from a timing standpoint, it’s also true that we sometimes need to use experts to do something other than just provide that report. I mean, we are talking about using experts in a broader sense, I think, than just giving us the expert report. But if they’re going to be helping us establish the context for the litigation even prior to the filing of the complaint, the preparation of the discovery demands, we may need more from them than simply the report. So starting early can theoretically help us in that sense as well.

Monica Poole:

Exactly. A great example of that is would be in trademark if you have to, if you’re trying to argue likelihood of confusion, you need to hire a marketing expert to run a survey. And those takes months to run a survey to see what the stats are and how strong the likelihood of confusion is in your trademark case.

Michal Rogson:

Now, is that something that you would want to do before even filing the complaint or is that something that once you’ve filed the complaint, you would want to take that step?

Monica Poole:

You could do it either way. I mean, if you run a marketing complaint, a marketing survey and consumers are not confused, that is an issue for you before you file your trademark. Maybe it is distinct enough where there’s no case. So I think it depends on the facts here. I mean, if it’s obvious, your trademark is very, very similar. They’re using the same colors, it’s the same image that you’re using, it’s the same type of product, then probably you could wait to do or maybe not even not do a marketing survey. But if it’s on the borderline, then I would probably do it, consider doing it before you filed the complaint.

Michal Rogson:

I absolutely love that. The answer to the question was integrally, lawyerly, and effectively it depends. It always does, doesn’t it?

Monica Poole:

Yes, it does.

Michal Rogson:

I mean, I think we’ve made a compelling argument for why plaintiffs need or should consider retaining their experts early. So why don’t we talk about the defense? The defense is inherently sort of reactive. They don’t necessarily need the experts in the same way that the plaintiffs do. Is there an advantage to the defense retaining an expert early?

Monica Poole:

Actually for very similar reasons. I work with defense attorneys that hire their experts during fact discovery because they want to make sure when they’re deposing the experts, the fact experts that they’re asking the right questions. Again, it depends on the type of expert. If it’s a niche area, you want to search earlier than later, but sometimes that will catch you off guard. There was a recent situation where someone asked for a medical code expert, and that seems like run of the mill. We all know about medical coding. It was in response to rebuttal report. And they’re like, oh yeah, just send us some medical coders. And they thought, oh, this is going to be easy. And I actually thought it was going to be easy as well. But then I found out in that arena that you just don’t have medical coders. You have medical coders that have different certifications that the majority of medical coders will evaluate medical coding from the provider side, and it’s a smaller subgroup that would evaluate coding from the facility side.

And this case involved hospitals. So it was from a facility and not a individual doctor or doctor’s office. And so that was a smaller subgroup that had a different type of certification from a different type of organization. And then another factor was hospitals use a certain software to code their medical bills and you had to have access to this software. And so every little element was added, made the pool a lot more narrow to find this expert. So what seemed to be very easy, straightforward, we’ll hire an expert in 48 hours intensified to, oh my gosh, are we going to find an expert in time to write the report?

Michal Rogson:

And if finding the right expert is unexpectedly complicated, trying to do it at the last minute can be challenging, particularly if the plaintiff has already identified and retained and

Monica Poole:

Wrote a report. So I mean, literally this was a situation where they had 30 days to respond to a written report. The first week was eaten up by just finding a person. And in that situation, you basically hire everyone that checks the box first and you don’t have a choice. You hire the best expert that you can find in the right amount of time versus the very best expert.

Michal Rogson:

So would you recommend the defense lawyers look to retain an expert as soon as possible after receiving the complaint?

Monica Poole:

I recommend that they at least do an initial search. For example, this whole case was about medical coding. So they could have started their research. I mean, they could start reaching out to experts at the very beginning and find out earlier that it was going to be more complicated than they thought. But that’s hindsight. 2020 litigation goes fast. There’s a lot of fires burning. But yes, in a perfect world, I would’ve suggested to start earlier. Even if you think it’s going to be a common expert, maybe start researching, talking to people and say, okay, yeah, this is going to be an easy find. Maybe I’ll put it aside. Or there’s nothing wrong with retaining that expert. You retain ’em as a consulting expert. You may not decide to designate them at the time. Usually experts, there’s usually retainer involved, but it’s all negotiable. And you would also have them on call to ask questions, Hey, look at these questions. We’re going to ask the fact witness review them. For me, that’s also an option. There’s really no downside to hiring an expert early. There’s only a downside if you wait too late and you have to scramble.

Michal Rogson:

Well, it sounds like the defense counsel can also be thinking about expert witnesses as resources that are not simply for or exclusively for rebuttal, but also to help them craft the defense.

Monica Poole:

Yes, absolutely. And ask questions. I’ve had several situations where the defense expert’s interviewing and they’ve asked to review the complaint prior to the interview, and the expert will say, well, issue number two isn’t even right. And this is why

Michal Rogson:

We talked about previously about how the plaintiff’s side can justify to their client the expense of retaining an expert, if not more than one early on, because it can in fact make or break the success of the complaint. And even if it saves you from having to amend the complaint twice, that is certainly an advantage in terms of saving on expenses. How would you recommend that defense counsel justify the cost of retaining an expert early?

Monica Poole:

The same strategy. Talk to your client about how this will help us have a inside view from someone that is in this industry that can validate the client’s thoughts and work with the client on supporting their defense. And the cost is really quite minimum. You basically pay for what you use. Again, there could be an upfront retainer. Some experts have minimum fees, but all that’s negotiable.

Michal Rogson:

I once heard a saying that when the best time to plant a tree was 20 years ago, the second best time is today. And this conversation has made me think of that I do not garden, but I do like having mature shade trees. So that does come to mind periodically. And it sounds like it’s a strategy that works with experts as well. The best time to retain the expert is as early as you can. And the second best time is right now,

Monica Poole:

And the experts actually prefer to be retained early. If in a perfect world, they would be retained as early as possible because it allows them to get plenty of time to review the materials. It lets them know about schedules early so they can dedicate the right amount of time for your case. So if you asked an expert, they would say, yes, please retain me early.

Michal Rogson:

I think that makes sense also, because if you’re using the expert not simply for the report, not simply for the rebuttal, but as an integral part of the litigation team sort of crafting both your causes of action and your defenses and helping strategize for discovery, the earlier you do that, the earlier you incorporate them into the team, discuss strategy with them, the more effective they’re going to be.

Monica Poole:

Yes, exactly. And you also have, you’re hired the best expert for your case. And it wasn’t a time pressure that depleted the pool that you have to choose from.

Michal Rogson:

I mean, that’s another great argument, right? Nobody wants to sit there asking themselves after the fact. What if,

Monica Poole:

Right?

Michal Rogson:

What if I had done it differently? Is there any last thoughts you’d like to leave our listeners with? I think that we’ve made an excellent case both for the plaintiffs and defendant’s counsels to consider retaining experts early and using them in a much broader way than they may have considered before. Anything else you’d like to leave our audience with?

Monica Poole:

I would just like when you’re interviewing an expert and you’re trying to figure out who is the best expert for your case. I have found that it’s helpful if you let them. They usually like to review the complaint and it makes the interview process a lot more productive. Or if you haven’t written a complaint yet, if you’re on the plaintiff’s side spending a few minutes telling them about your client and your story, they’re as eager as you to make sure that they are an expert working within their expertise on your case, and they want to be as successful as you are to make sure that the client prevails.

Michal Rogson:

Actually, that is a fantastic litmus test for the coherence of your arguments both on either side, because if you can make your argument compelling to the expert, you’ve got something they know the industry, you may have to, as you said before, simplify it for the court. Depending on the kind of trial you’ve got, you may need to simplify the concepts. But if you can make your case to the experts, then you’ve got a case

Monica Poole:

That is correct and they’re very forthcoming in their thoughts. Of course, they can’t make a final decision without reviewing all the documents or give you an opinion, but they can definitely help you weigh your strategy and maybe even offer some thoughts to tweak your strategy.

Michal Rogson:

Well, clearly finding the right expert is only part of the challenge, and as litigators, we need to think about how we leverage those experts. It’s very clear to me that partnering with an experienced expert search firm such as the Roundtable Group can be useful in making your expenditure on an expert as strategic and effective as possible. So Monica Poole, thank you so much for being on the show today and sharing your expertise with us. It was a pleasure. Thank you

Monica Poole:

So much.

Michal Rogson:

Thanks to the litigation section, premier sponsor Roundtable Group for sponsoring this podcast. Roundtable Group is an expert witness search and referral service with decades of experience and a comprehensive array of academic and industry relationships, as well as access to proprietary tools that further enhance the expert search capabilities of attorneys with no upfront fees. You only pay if you retain an expert referred by Roundtable Group. Learn [email protected]. And now it’s time for a quick tip from the ABA litigation section’s Mental Health and Wellness Task force. I’d like to welcome Tiffani Mims to the podcast. Tiffany is a former Cook County assistant state’s attorney and is currently serving as assistant corporation counsel for the City of Chicago. She is also our very own co-chair of the Litigation Section’s Mental Health and Wellness Task Force. Welcome to the show. Tiffani, what’s your quick tip?

Tiffani Mims:

Thank you. Today’s tip is calm in the midst of calamity. First of all, I would like to thank Litigation Radio and a section of litigation for having me here. It is an honor and an incredible opportunity. As fall begins to creep into our weather forecast and calendars, there is a myriad of seasonal occurrences that impact our lives for parents. This is the time for school activities to come back into full gear work. Calendars must be aligned with not just status states and settlement conferences, but parent teacher meetings and school games, dorm room dilemmas, tuition, tribulations and emptiness really start to hit home in the fall. However, change is not just in store for parents depending on where you are in the nation. As the sun begins to sit earlier, we lose our natural source weather of vitamin D, which impacts us all. Even if we’re not impacted directly by seasonal affective disorder.

Weather changes begin to slowly but surely force us back inside in most of the nation impacting our ability to be active in part. And lastly, in even number of years, the American political system forces us to be inundated with crucial congressional races that have an immediate and global impact ous to a contested presidential election year. As litigators, we are inundated with news that we have to filter through as case law is changing literally daily impacting how and why we practice. The truth is, for everything I’ve mentioned, there are thousands of issues, events and concerns that we don’t have time to address here, but in the short time we have left, the central question that grips us all is how can we ensure a positive work-life balance, what all of these fall seasonal factors added to our plate? Russell Eric Doda once said, taking a break can lead to breakthroughs.

Here are three simple steps to take a break daily to ensure that you have the pathways you need for breakthroughs at work and at home. First, make yourself the first priority in the morning. We don’t all have time to get in a yoga session or a morning run, but we all have the time to ensure our first thoughts and actions. However short can be a chance to reflect and check in on ourselves. Set priorities, accept limitations with no judgment. Being aware of where you are for the day puts you in a position to realistically make that day a success. Secondly, engage in some sort of physical activity. It does not have to be an exercise session. It can be simple as picking up groceries and taking them up the stairs, taking a long way to the bathroom, going up the stairs versus the elevator at work, taking a walk for lunch.

But the activity is not the goal. The dopamine release of completing a physical task within your control is we working in occupation where a simple physical task may be the only unquote win we have at work, which makes all the difference to how we present to our friends and family when we return home for the day. Lastly, give yourself the grace to be fluid. There is no plan that has been created or implemented yet to ensure a day without unexpected problems and challenges. The only healthy measure you have is effort. Give all that have to each day and give yourself the grace to embrace your mortality at least outside of the Courtroom. Thank you and have a great day.

Michal Rogson:

Tiffani. Thanks so much for sharing that and for being on the show today. And that means it’s time to wrap up. I’d love to hear your thoughts about today’s episode, and if you have comments or questions you’d like for me to answer on an upcoming show, you can contact me at m [email protected] or connect with me on LinkedIn. You can also connect with the ABA Litigation Section on most social media platforms. But as much as I like connecting with folks online, nothing beats getting to meet each other in person. At one of our section of litigation events, we do have one coming up fairly soon. Please consider joining us for the Class Actions National Institute happening October 23rd through the 24th in Dallas, Texas. You’ll get to learn about the latest developments and class action litigation while also getting to network with talented litigators from around the country.

For the complete program lineup and to register, go to ambar.org/class actions. If you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social and invite others to join our community. If you want to leave a review over at Apple Podcasts or a quick rating at Spotify, that’s incredibly helpful as well. And finally, I want to quickly thank some folks who make this show possible. Thanks, To Michelle Oberts who’s on staff for the litigation section. Thanks. Also goes out to the co-chairs of the Litigation Sections audio content committee, Kaylee Maple and Michael Steger. Thank you to the audio professionals from Legal Talk Network and of course, thank you for listening. See you next time.

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