By Michael D. Leshner, P.E
Attorneys often need to find experts to engage in technical investigations, provide opinions and give testimony. Before starting your search for an engineering or technical expert, you should consider the following:
What kind of expertise is needed?
Every case is different, and different kinds of cases require different kinds of expertise. Often, attorneys are not sure what kind of expertise is needed until after they have spoken to a few experts. They make the mistake of specifying expertise very narrowly, for example:
“Garbage Truck Expert needed to inspect garbage truck that backed over someone. Candidate must have designed garbage truck backup alarms.”
Unfortunately, only a handful of engineers have designed backup alarms for garbage trucks, and it is unlikely that any are available to consult. For such an assignment, good candidates may come from a variety of disciplines, including for example, electrical, mechanical, automotive, or safety engineering backgrounds. The right candidate will know that there is a National Standard for backup alarms on refuse trucks. The expert will know how to get a copy of the standard, interpret the standard and measure the sound level of the alarm. One does not need to have designed a backup alarm in order to determine whether one works properly and complies with industry standards.
A more thoughtful specification:
“Expert needed to inspect garbage truck that backed over someone. Candidate must be qualified to evaluate performance of backup alarm per industry standards and report on findings.”
Another example of technical expertise specified too narrowly:
“Structural Engineer needed to inspect collapsed deck and determine the cause of collapse.”
In this case, there are multiple potential causes, and some may be related to design, construction, wood decay, insect attack, soil settling, and others.
A more thoughtful specification:
” Expert needed to inspect collapsed deck and determine the cause of failure.”
The best candidate will likely be an engineer, but a senior level person in the construction trades may be even more qualified, with firsthand experience designing and installing decks. There are times when a local mechanic makes a better witness than a university professor.
All-purpose expert or specialist?
Some types of cases are straightforward from an engineering perspective, and do not require a specialist. For example, if a fall-down accident occurs on a stairway without a handrail, any qualified Architect or Professional Engineer can review the industry standards for stairways and handrails, and opine on whether the stairway was in compliance with those standards. If the expert has any background or qualifications in Safety Engineering, he might opine on the probability of whether the presence of a handrail would have prevented the fall, supported by some research. An all-purpose expert from a variety of disciplines can handle such an assignment.
When the technology is more specialized, a more specialized expert is needed. For example, consider a case in which the wheel of a vehicle is found separated following a collision. An Accident Reconstruction expert takes measurements and says: “I need an engineer to determine whether the wheel came off as a result of the collision, or the wheel came off and caused the collision.” At that point, you would engage an expert qualified to make such a determination. That person may have some overlapping background in Automotive Engineering, Crash Reconstruction, and Materials Engineering.
What is the scope of the job?
You start with some expectation of a budget to hire an expert, and the value you hope to receive. Depending on the size of the loss and complexity of the technical issues, you might be anticipating anything from one day’s work to thousands of hours spread over several years. Is travel involved? The expert needs to understand the scope what you have in mind before deciding whether he is able to accept the assignment.
What do you expect the expert to do? At the outset, you may not know. Attorneys often seek guidance from the expert to suggest how best to proceed. If the scope is undefined, the expert needs to know that, too.
Complex technical issues may require multiple experts who must coordinate with one another. When the economic value of a case is very high, multiple experts are often engaged. One reason is that experts are human, and can get sick or die before the case is resolved. Overlapping technical disciplines can also be a benefit because experts can confer confidentially and check one another’s work.
For example, in a complex case involving a kitchen appliance that caused a fire, it may be necessary to engage a fire cause & origin expert, an electrical engineer, and an engineer familiar with appliance design and safety. If the failure caused injury, a biomedical engineer or medical doctor may be needed as well.
In addition to testifying experts, consulting (non-testifying) experts are sometimes engaged because their work product is not discoverable under the Federal Rules.
What are your selection criteria?
Academic credentials are good, but an impressive history of work in the field adds credibility. A Ph.D. or Professional Engineering license is preferred. At times, an experienced tradesman with no university degree can be just as knowledgeable and credible as an expert with degrees and honors. Experience in the legal system is a big plus.
Review of a candidate’s CV and other materials (publications, website) will help to sort out which candidates are qualified on paper. The real test occurs when you and the candidate speak with one another. Excellent verbal communication skills may be the most important qualification for an expert, and you must evaluate those skills personally.
Degrees, Licensure and Certifications
University degrees such as BS, MS, and Ph.D are generally understood by the public. These degrees represent successful completion of an academic program, but do not necessarily convey expertise.
Like medical doctors and attorneys, engineers may not offer their services to the public without a State license. Judges increasingly recognize a State Professional Engineering license as a benchmark for engineering experts for several reasons. First, the P.E. license requires a substantial level of education and work experience, and requires passing 16 hours of written examinations. More importantly, state licensure as a P.E. carries an obligation to a code of ethics. Ethical conduct becomes especially important when engineers participate as experts in the legal system.
Certifications such as CFI (certified fire investigator), CFEI (Certified Fire and Explosion Investigator) and CVFI (certified vehicle fire investigator) are obtained by fire investigators who may or may not have university degrees. The same is true for ACTAR (Accreditation Commission for Accident Reconstructionists), a certification for accident reconstructionists. These certifications and others require applicants to pass a written exam, and demonstrate a commitment to professional practice and continuing education.
Financial constraints often lead attorneys to hire local experts. In addition to saving money on travel time and expense, local experts have a bit of an advantage over out-of-town experts with local jurors. If the expertise you need is specialized, you may have to search outside the local area.
In many cases, an expert can do everything he needs to do from the office – review documents, perform research, write reports… without any travel. In such cases, location is a lesser factor.
Level of experience
The typical expert witness demographic tends to be older, with 30+ years of experience. While younger engineers and scientists may be fully qualified, juries tend to have a cultural bias, attaching credibility and wisdom to age and experience.
It is my personal observation that expert assignments are a bit like attorney assignments. Cases with a modest value and complexity get handled by younger attorneys and experts. When the economic value of a case is very high, more experienced attorneys become involved, and they often hire more experienced experts.
Some experts have full-time regular employment and consult on the side. Others operate as full-time consultants. Some engineering firms have full-time engineers on staff, and others rely on outside consultants. In any case, you need to confirm that the candidate will be able to fit your job into his schedule.
Scheduling and availability are generally not an obstacle, because like attorneys, experts usually work longer work-weeks when necessary.
Rigid vs. Malleable
Technical experts come in all flavors. At one end of the spectrum are engineers and scientists who will report the “just the facts,” and would send the same finalized report, whether favorable or unfavorable, whether plaintiff or defense, without an opportunity for your prior review. At the other extreme are experts who are eager to please, and will say whatever you want them to say. Beware of both.
Experts who behave ethically and professionally also report the facts, and help you to present the facts in the manner most helpful to your client. If some facts work against you, your expert can help you prepare to deal with them.
It is a useful exercise to ask the potential expert: If you were hired by the opposing party, how would you approach the assignment? How would you express your opinions?
Plaintiff vs. Defense
Experts are often naturally biased toward plaintiff or defense. Although we like to deny it, we are all biased – some more than others. It is important that the expert’s bias does not skew his opinions. Even more importantly – do not allow your own bias to influence the expert.
The tendency of an expert to work exclusively for plaintiff or defense is a big credibility factor with lawyers and judges, but the implications are not as well appreciated by jurors. The ideal expert works 50% for each side, but most are more unbalanced with regard to plaintiff/defense split.
The phone interview
Nearly every expert search involves one or more phone interviews. Candidates should be willing to spend some time with you on the phone, to give you a little sample of their work. This is your opportunity to check for conflicts, get some references, and learn more about the expert. More importantly, you will begin to develop an impression of the expert’s credibility, competence, confidence, likeability, and begin to get a “vibe.”
Has the candidate worked on similar cases? Testified? How many depositions? Trials? Has he ever been excluded? What were the circumstances? What was his worst experience as an expert?
Will this person be easy to get along with, or will he be a pain in the ass? The phone interview is a chemistry test. Chemistry between attorney and expert must be very good to elicit the desired synergies. Trust your gut on the chemistry test.
Challenges to testimony
In today’s legal environment, it is not unusual for experts to have been challenged on qualifications, methodology, bias, or other creative legal strategies. You must discuss these issues with the expert you are considering, because any adverse history may surface in your case. Such history may not be a problem, but it is important that the expert be able to explain or defend any such history crisply and convincingly, and/or explain that the technical issues are sufficiently different from your case. Experienced experts may carry war wounds, and the experience can make them stronger, but you should be aware of the scars.
In an employer-employee context, references are of limited value. However, the Department of Labor has no prohibition against an attorney checking up on a potential expert. Ask for attorney references. Call the references. Ask any question. How was the experience with this expert? How did she perform in deposition? At trial? Were the fees reasonable? Was the expert easy to get along with? Would you hire her again?
It is standard practice to do a conflict check before discussing any case-specific details with a potential expert. Disclose the names of the parties at a minimum. Beyond that, mention the names of the opposing law firm, attorneys, and their expert (if you know at the time).
While it is not a conflict for an expert to work for a client opposed to an attorney for whom the expert has worked in the past, (or is working with currently), it is best to put all cards on the table. Anything that may appear to be a conflict should be in plain view.
Experts may find themselves working alongside another expert on one case, and opposing the same expert on a different case, concurrently. While that may appear to be a conflict, it is not. Experts in a region and within a specialty tend to meet one another at joint inspections, waiting outside a courtroom, or at professional meetings where they participate in continuing education. Like attorneys, experts must also be sensitive to confidentiality issues to avoid conflicts.
Most States require Professional Engineers to obtain continuing education credits for licensure renewal each year. Many states also require a portion of that education to be focused on ethics. Ethical training for experts explores real and hypothetical situations faced by experts that probe the boundaries of ethical/unethical behavior. As cases are discussed, the resolution is based on the NSPE Code of Ethics.
In a nutshell:
Engineers, in the fulfillment of their professional duties, shall:
- Hold paramount the safety, health, and welfare of the public.
- Perform services only in areas of their competence.
- Issue public statements only in an objective and truthful manner.
- Act for each employer or client as faithful agents or trustees.
- Avoid deceptive acts.
- Conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession.
The code in its entirety: http://www.nspe.org/resources/ethics/code-ethics
The expert should send you a document outlining fees and terms. If not, the attorney can prepare a letter outlining the agreed fees and terms. Whatever the form of document, the agreement needs to be documented to avoid future misunderstandings. Most experts require a retainer check in hand before being “retained”.
When experts gather at conferences, a frequent topic of conversation revolves around getting paid. Seasoned technical professionals often resent the job of collecting money and often refuse to work again with slow-payers. If you want to establish a strong working relationship with an expert, make sure invoices are paid promptly. If another party is paying, help the expert by expediting with the responsible party.
Fees tend to be regional – higher in the big cities. An expert’s hourly or daily rate is only half of the formula determining the charges. Some experts work more efficiently than others, and bill you 2 hours for a 10-page report. Others might invoice 10 hours for the same report. It is fair game to ask the potential expert how much time he estimates for an inspection, travel, report, etc. When you check references, ask whether the expert’s invoices were reasonable.
In some cases, you may want to meet the candidates in order to fully evaluate their appearance, manner, and those things you may not pick up over the phone. This tends to occur in very large cases that are expected to involve a lot of expert help. To appear for such an interview, experts would expect to be compensated for travel expenses, and in some cases, a day’s consulting fee.
About the Author
Michael D. Leshner, P.E. is a Board Certified Forensic Engineer and has testified in the courts as an expert since 1982. He is a Fellow of the National Academy of Forensic Engineers, Chairman of the Education Committee, and is on the Board of Directors. www.expertlabs.com[/vc_column_text][/vc_column][/vc_row]