How to retain an expert in a cost effective way

If you include peer review – good case insurance – you can consult with an expert in eight (8) different ways, from least expensive to most expensive, according to the technical needs of the case. (Refs 1, 2)  Really, only four (4) basic ways plus peer review.

Judiciously selecting the best way is one key to managing the cost of civil litigation.  You still got to manage your costs as distinct from the expert’s costs.

If you briefly confer with an expert, at the case merit assessment stage, you can, in a sense, add a ninth (9th) way.

These different methods are described below.  And there’s a nice, nine-item list at the end to help you see how easily the different methods follow on one another.

You must think about how and when you retain an expert because most failures in the built environment are small or medium-sized, not catastrophic and newsworthy – and not affluent either. (Ref 3)   Yet, regardless of case size, most failures and injuries require a thorough forensic investigation consistent with how the expert is retained and what s/he is asked to do.  You can always start small and expand the investigation as.the evidence comes in, if this seems justified.

Peer review of the expert’s work regardless of how he is retained is not so so necessary, not one of the basic ways, but it is good insurance – and cost effective for that reason alone. (Ref. 1)

In the past, experts have been retained in one of two ways:

  1. Consulting expert
  2. Testifying expert

Today and in future – almost without exception – experts will serve as consulting experts in the resolution of disputes rather than testifying experts.  This is because of changes in civil procedure rules governing experts.  The changes are designed to expedite resolution of disputes and reduce the number of cases going to trial.

(I attended Expert Witness Forum East in Toronto last February and learned that 98% of cases in one area of dispute were settled out of court.  I can’t remember the area but know it wasn’t engineering and science; even though the great majority in these fields, percentages in the mid-90s, are also settled out of court)

The consulting expert will submit one or the other of the following two basic reports according to Counsel’s instruction.  Ideally, these reports would be submitted at several stages throughout a forensic investigation, starting at a preliminary, even a merit assessment stage, to keep Counsel informed as to what the evidence is finding and the cost to date:

  1. Oral consulting expert’s report
  2. Written consulting expert’s report

The oral report can also be presented in one of two ways:

  1. Factual oral consulting expert’s report
  2. Interpretative oral consulting expert’s report

factual report gathers together all the data from the office, field, and laboratory investigations and submits the raw data to Counsel – without analysis and interpretation.  It’s used now in the science and engineering fields.  For example, in the geotechnical investigation of ground and foundation conditions at a new building site.  I was introduced to this type of reporting while practicing for a time in Australia and England.

An interpretative report analyses and interprets the raw data, draws conclusions and formulates an opinion on the cause of the failure or accident.  The report can be quite comprehensive, particularly in a complicated case.

The cost of a factual oral report is easier to estimate and control.  The cost of an interpretative oral report is more difficult to estimate.  Sometimes very difficult because you don’t know what you’re going to find at the site of an engineering failure or accident if you follow the evidence, (Ref. 4)

factual oral consulting expert’s report to retaining Counsel could be quite inexpensive compared to a written report to the requirements of civil rules.  A peer review of the factual oral report could also be relatively inexpensive.  The peer might discuss the facts with the expert – orally – and the investigation supporting these.

For example, I gave a factual oral consulting report on a power tool accident after I videotaped the victim reenacting the accident and after the tool was examined for wear but before investigating the adequacy of the design and manufacture of the tool. Counsel decided against further investigation based on my factual oral report.

Other examples: A colleague who reconstructs traffic accidents said he frequently gives oral reports on his findings.

Similarly, an interpretative oral consulting expert’s report could be relatively inexpensive with or without a peer review compared to a written report.  More expensive, of course, because of the interpretative element, but still less than a written report.

The written report can also be presented in one of two ways:

  1. Factual written consulting expert’s report
  2. Interpretative written consulting expert’s report

The relative costs of these two ways of writing a report on the forensic engineering investigation are apparent – less for factual and more for interpretative, and a little more still for peer review of either.

A summary of sorts

So, the cost of retaining an expert increases from least expensive – a factual oral consulting expert’s report without peer review, to most – an interpretative written consulting expert’s report with peer review.

It’s no surprise that an interpretative written expert’s report is one of the most expensive if it’s remembered that “An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 4)  And, I might add, turn questioning and rebutting the report before discovery into a cakewalk, a tsunami, if the report is distributed to all parties.

How you retain an expert – there are eight (8) different ways – is one key to reducing the cost of all cases, affluent and less affluent alike.  You can’t lose, if you manage your own legal costs properly, as I’m sure you do, with so many cost effective ways to retain an expert.

And also, like I said, there’s another way still, possibly the best way of all, the ninth (9th) way: Briefly talking with an expert at the case merit assessment stage.  Retaining an expert at this stage, for a few dollars. would be sort of like a preliminary factual oral consulting expert’s report – the most cost effective way of all and the best return on money spent on an expert; possibly even better than peer review.

Here’s how the different ways of retaining an expert appear in a list – from least expensive to most expensive – if we include conferring with an expert at the case merit assessment stage:

  1. Preliminary factual oral consulting expert’s report (at the case merit assessment stage)
  2. Factual oral consulting expert’s report
  3. Factual oral consulting expert’s report plus peer review
  4. Interpretative oral consulting expert’s report
  5. Interpretative oral consulting expert’s report plus peer review
  6. Factual written consulting expert’s report
  7. Factual written consulting expert’s report plus peer review
  8. Interpretative written consulting expert’s report
  9. Interpretative written consulting expert’s report plus peer review

A bit repetitious but I think helpful in deciding how to retain an expert in a cost effective way.

I did not include testifying expert in this blog because this role for an expert is much less likely in future – a few percent at most across all areas of dispute.

References

  1. Eureka! Peer review is good case insurance. Posted November 16, 2018
  2. How experts are retained in civil litigation is changing and the changes are good for counsel and the justice system. Posted May 1, 2014
  3. Principles Governing Communications with Testifying Experts, The Advocates Society, Ontario, June, 2014
  4. Reducing the cost of forensic investigation – it’s being done now by default not by plan. Posted September 22, 2014
  5. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an expert witness report, Preface, Page xiii, SEAK Inc., Falmouth, Mass. 2014

Bibliography

  1. Peer review in forensic engineering and civil litigation. Posted November 26, 2013
  2. A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013

 

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