Common Competing Concerns Between Experts and Lawyers.
(And how to avoid them.)

It all starts out nicely enough.

The Lawyer has called a fellow attorney, or looked on SEEK or Experts.com and read though a Bio and CV, or two, of potential Experts for her case.

She picks one, and makes the call. The Lawyer and Expert make their manners on the phone. If both are smart, the very first thing they do is run through the parties and attorneys involved in the case, and run a conflict check. Sometimes it’s quick and easy – sometimes it requires a real ‘look through the Rolodex’ to see if there is a conflict and a call back after having done so.

Most of the time, if a conflict check is done in that first call at all, this is the point that the Lawyer starts talking about the case.

But hold on there buckaroo.
Who is the Lawyer talking to? Is she talking to an Expert, or a Consultant?
There’s a difference; sometimes a BIG one.

Consultant v. Expert

An Expert (in a typical real estate breach of fiduciary duty type case), as we all know, is someone that will testify at deposition or trial about whether one side or the other met the standard of care due a licensee to a principal. The principal’s Expert will say no, the agent’s Expert yes. Or, at least, that’s the hope. Most Experts aren’t thought about until well into the discovery phase, and often are named at the last minute before Designation of Experts are required. Most of the time, a Lawyer can get away with that. Sometimes, however, the ‘last minute’ designation can cause real problems. (More on that in a minute.)

A Consultant, on the other hand, is someone who can work with the Lawyer from the beginning of a case. Some Consultants are an extra pair of eyes that can look at a case and suggest ways to enhance it, or speak to why it might be better to settle the darn thing before the other side wises up and see just how good a claim they have.

The thing about Consultants and Experts is this:

Consultants fall within that beautiful thing call the Attorney-Work-Product Privilege. The ‘other side’ never gets to see or hear about what the Consultant and Lawyer had to say to each other.

Experts don’t get that cover. Every- and Any- thing the Lawyer and Expert had to say to each other (in calls, emails, texts) is discoverable. No Work-Product privilege exists for Experts.

Can you turn a Consultant into an Expert?
Sure. Right at that time you issue your Designation.

Does all the work the Consultant did become discoverable as now part of the Expert’s file?
Here’s that answer Lawyers love to give Clients: It depends.

The ‘other side’ will argue that the entire file is discoverable.
The Lawyer will argue that the Consultant’s work is privileged, and that the Expert’s work is not. If the Expert testifies that the Expert didn’t rely on any of the materials in the Consulting file, then – maybe – at the hearing on a Motion to Compel, the judge will agree with the Lawyer. Maybe.

Good, Bad, and Ugly

But here’s the thing,
For either the Expert or the Consultant, it is a Fact of Life that every case has a stinky fact (or even two, or three) that’s just plain bad for the hiring Client / Lawyer. Every Single One.

As a Lawyer, you might be tempted to present only the ‘good side’ of your case to the Consultant or Expert. DON’T. I promise it will bite you in the butt.

A Lawyer has to give the Consultant / Expert all the information needed to give an honest opinion.
The Consultant can help guide you through potential defenses to the Bad Fact, and the Expert can ponder – well ahead of time – how to minimize the impact (if that’s appropriate to do).

Just how bad the Bad Fact is may dictate whether the Lawyer should hire a Consultant or Expert. Either way, the Lawyer has to give the Consultant or Expert enough information to render and informed opinion. And, after all, isn’t that what the Lawyer wants? But how much it too much? After all, the Lawyer is going to pay that Expert/Consultant to read through everything s/he is given. (“Did you get X from counsel? Did you read it? Did that inform your opinion? If you had received it, would it potentially change your opinion?” Depo questions from hell…)

Most of the time, there is a way to convey the Bad Fact to an Expert without leaving a discoverable trail. Doing so can allow the Expert to adjust his/her thinking without giving the key to the bank to the opposition.

Who’s Bill Is It Anyway?

And, speaking of banks, let’s talk billing – or more to the point – paying.

Most Experts will have Agreements whereby the Lawyer is hiring the Expert.
The Lawyer may think that’s being done as an “agent for the Client” making the Client ultimately responsible for the Expert’s bills.
The Expert is – for sure – thinking that the Lawyer is the one responsible for paying the bill.
Be clear in the Agreement who is responsible for payment. Very clear.

For the Lawyer who doesn’t want to be stuck with a $15,000 bill, that clarity is a godsend. I guaranty that. For the Expert who wants to be sure to get paid, knowing the Lawyer is NOT responsible, may well result in calling for a $10,000 retention fee up-front. If the Client can’t pay it when the Expert gets hired, the Client won’t be able to pay it when the case is over and the attorney fee bill comes in. I guaranty that too.

How Much is it Worth to Park or DQ and Expert?

Another reason for checking those conflicts and getting retainer fees up-front, is the Evil Lawyer that will call an Expert or Consultant and have a nice “preliminary chat.” The Evil Lawyer might even send a confirming email in which the Evil Lawyer recaps some of the things spoken of.

Then the Evil Lawyer calls the next Expert / Consultant on the long list of Experts in front of her.

Why?
To disqualify the Expert or Consultant from working on the case for the ‘other side.’

Don’t think it’s happened before? Think again. Especially in an area with few Experts to choose from. It’s another reason for designating early.
Just sayin…

On the other hand, it is not a bad idea to secure your chosen Expert well before the need arises. (That way, the other side can‘t grab him/her in the meantime.) So, securing the Expert, and then “parking” him/her on the sidelines for a month (or three) can be a good idea. Just let everyone know that’s what you’re doing up front.

Oh, and Keep an Open Mind

Often Lawyers (I was one that fell into this trap as well) can get True Believer Syndrome. Lawyers become invested in a case. They lose perspective.

A good Consultant or Expert can offer a different perspective.
Sometimes that perspective can be invaluable.
If the Lawyer is willing to listen to it, that is.



Leave a Reply