During a 32 year history in forensic economics, we have observed a number of management practices that can really help attorneys manage their cases for maximum value, and minimize expert costs. We offer four tips here.
Retain Experts Early
It can be very costly to work up a case for litigation or trial. But we believe it is still best to retain experts early. When experts are retained at the last minute, this usually implies rush work. Rush work is when mistakes happen. In addition, some experts charge premium fees for work that has to be done on a rush basis.
Early retention of experts gives them time to communicate with other experts on the case so that opinions and reports can be finished timely. It can also help to have an expert do a preliminary report; preliminary or settlement reports can often help to provide a general value to special damages, and thus help in settlement negotiations.
Early retention also allows experts time to gather the data and documents required for an opinion. This leaves time to gather the correct documents that support assumptions.
Establish a Budget
Establishing a budget with an expert is a great way to control costs. We find that it is usually not possible to give an estimate for the cost of an analysis until all available documents have been received. But once this is done, many experts will give a budget for an initial report. If required, many will also set a "Do Not Exceed" price for initial work.
Of course, once cases proceed to deposition and trial, there is more work involved (travel, testimony, etc.), almost always above and beyond initial budgets. But again, there is no harm in asking what the general costs for final opinions and testimony will be.
Leave Document/Information Gathering to Staff, not the Expert
The more preparatory work that is done by the staff of the retaining attorney, the lower expert costs will be. Ask experts for a list of required documents. Have support staff gather the information. It is much more efficient to have support staff do this work than to pay an expert $500 per hour to try to find basic information about a case.
Don't Exclude Experts Simply for Cost Considerations
First, it should be noted that not retaining an expert in a certain area can be a strategic decision, one that often pays off. Many times defense attorneys will not hire vocational experts or economists to rebut plaintiff experts, because they don't want to give credibility to the special damages being claimed.
On the other hand, rebuttal witnesses can be very helpful, even if not called to testify, in establishing the weaknesses of opposing expert's opinions. And they can supply a list of questions that can often weaken or impeach an opposing expert's position.
There are times when an expert can be very helpful, though it may not have seemed so at first glance. A great example, and one that we have observed on many occasions, is a wrongful termination matter that involves an older plaintiff. Perhaps the plaintiff has a limited, remaining worklife expectancy, so that at first glance one would not consider hiring a vocational expert.
But in these matters a vocational expert can be one of the most important parts of the case. A vocational expert can provide valuable information about age discrimination in the market place. About the difficulty of changing occupations in the latter part of the age-earnings profile. In fact we often suggest that in these matters the attorney get a vocational expert to explain the difficulties older workers have in finding new jobs. Though it is illegal, age discrimination is real and unfortunate part of the labor market.
If one is putting together a case for litigation—either for the plaintiff or the defendant—try some of these tips for cost minimization, and value maximization. And if there is any way we can help, let us know.
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