Avoiding Individual Liability for Experts

TASA ID:

Avoiding Individual Liability for Experts

While experts witnesses routinely offer opinions that help courts determine someone else's liability, experts commonly ignore their own potential liability for offering these opinions. In this interactive webinar, attorneys Craig Heidemann and Nathan Duncan guided you through the minefield of individual liability. They discussed specific strategies for avoiding personal liability when a case goes bad. Topics to be discussed include:

• Using your retainer agreement to take pre-emptive steps to avoid liability
• Available insurance coverage, including practice specific coverage
• Legal issues affecting expert witness liability
• Determining who is your client
• Minimizing risk through communication with your hiring attorney
  
  

About the Presenters:

Mr. Heideman is a shareholder at Douglas, Haus and Heideman, P. C. Mr. Heideman's practice focuses on serious personal injury claims, wrongful death, class actions, civil rights, pharmaceutical products liability and felony and misdemeanor criminal defense. Throughout his practice he has recovered significant dollar settlements and judgements for his clients.

Mr. Duncan is a partner at Douglas, Haus and Heideman, P.C.  Mr. Duncan attended law school at the University of Missouri -  Columbia where he earned his juris doctor in 2007.  Nathan is a member of the 30th Judicial Circuit Bar Association and the Missouri Bar.  He is also admitted to practice before the U.S. District Court, Western District Court of Missouri.  He specializes in the areas of personal injury, civil rights litigation, employment law, bankruptcy and class actions.

Transcription: 

Carol: Good afternoon, everyone, and welcome to today's presentation that will explore potential liability issues facing experts. Today's webinar will discuss the following: using your retainer agreement to take pre-emptive steps to avoid liability, available insurance coverage, including practice-specific coverage, legal issues affecting expert witness liability, determining who is your client, and minimizing risk through communication with your hiring attorney.

Our presenters today are Mr. Craig Heidemann and Nathan Duncan. Mr. Heidemann is a shareholder at Douglas, Haun, and Heidemann. His practice focuses on serious personal injury claims, wrongful death, class actions, civil rights, pharmaceutical product liability, and felony and misdemeanor criminal defense. Throughout his practice, he has recovered significant-dollar settlements and judgments for his clients.

Our additional speaker is Mr. Duncan, who is also a partner at Douglas, Haun, and Heidemann. Mr. Duncan attended law school at the University of Missouri-Columbia where he earned his Juris Doctor in 2007. Nathan is a member of the 30th Circuit Judicial Bar Association and the Missouri Bar. He is admitted to practice before the U.S. District Court Western District Court of Missouri. He specializes in the areas of personal injury, civil rights litigation, employment law, bankruptcy, and class action.

During today's presentation, we urge you all to ask questions by using the chat feature located to the right of your screen. We welcome your questions, and we will take intermittent breaks during the presentation to respond. Tomorrow morning, we will also send out an email with the links to the archived recording of the webinar. And, also, before leaving the presentation today, I ask that you complete the survey at the end of the program.

I'm now going to turn the presentation over to Nathan and also Craig Heidemann so that they can start their presentation, and we do thank them very much for the time and the effort that they have put into it. Craig and Nathan, the presentation is now yours.

Craig: Carol, thank you very much. We're very excited to be presenting on this topic. It's a fresh topic that I think will be of interest to everyone. We've got about 82 attendees and climbing for today's seminar.

Nathan: We're glad you're all here with us. We wanted to talk about something that is...it's not on the forefront, probably of your mind. We've done several of these webinars before, and questions on this topic have come up tangentially. So, we wanna deal with them head on.

As experts, you probably wonder, and we've got the question, "Can I be sued for my work as an expert?" And really, that's one of two issues we wanna talk about today: can you be sued, and also, if you can, then how can you avoid being held liable? It used to be expert liability, along with attorney liability, used to be very unpopular. Lawyers wouldn't take those cases. You didn't see many of them. But over the last 15 years, we've seen attorney liability and expert liability cases grow nationwide.

So, let's dive into that first question, can you be held liable? Because, that was not always the case. Whether you could be financially responsible for an outcome of a civil or criminal lawsuit that you were retained to give an opinion in. Really, there are three possible threats that you face. One is from within. The client who hires you could...whether they can sue you. We call those suits against friendly experts.

Craig: Doesn't sound very friendly, Nathan.

Nathan: No, very unfriendly. The second is, if you're appointed by the court or hired by both parties to the lawsuit, or multiple parties to the lawsuit, can you be subject to civil liability for your opinions there?

Craig: That might be a psychologist that gets appointed in a family law dispute.

Nathan: And that's where a lot of those cases come from, are domestic types of cases. And then the third is can the other side, perhaps the party you testified against, sue you for the work that you did in the lawsuit? And so those are the three threats that you as expert witnesses face.

And so, let's talk about...give you a little background, first of all, and the answer, this is the standard attorney answer, right?

Craig: It depends.

Nathan: It depends.

Craig: And it all goes back to the English common law from many, many moons ago. The English common law, the concept was whatever you said in the four walls of the courtroom was immune from any kind of civil redress. No one could come after you for anything that you said on the stand other than perjury, so you were protected from whatever you wanted to say. And, if you think about it, that really makes a lot of sense.

Nathan: It does. I mean, the best example is, let's say I'm on the witness stand and I say something about Craig. Well, Craig beats his wife or whatever.

Craig: That's a felony. If you said that outside the courtroom, that would be defamation, per se, because you're accusing me of having committed a crime. But obviously, if Nathan is a witness to that particular set of facts, we want him to be able to say that on the stand without being afraid of being dragged back into the courtroom in a civil case.

Nathan: That's right. And who approves, and who has approved? Nobody less than the Supreme Court of the United States. In an important case, they said that witness immunity is alive and well, it survives from our English common law to today, in this Briscoe v. LaHue case. And so, like Craig touched on, the reason that courts still enforce this idea of witness immunity is because we want witnesses to be truthful, and we don't want their testimony to be shaped by the risk of liability.

Craig: It's hard enough to get witnesses to come to court with a subpoena, and if they had the threat of being sued for the content of their testimony, I think you'd be hard-pressed to get anybody to come to court.

Now, keep in mind, and we're gonna talk about this important distinction as we move on, this is what you do within the four walls of the courtroom, not what you did to get yourself there, not what you did outside in the hallway. But it is the actual testimony that you give after you swear to tell the truth.

Nathan: Now, this principle of witness immunity, it applies and has applied for many years to, not just fact witnesses but also to expert witnesses, which should make you feel like this, baby, very happy. No liability for what your work as an expert witness is. The thing is that all good things must come to an end.

Craig: They must. Everything changes.

Nathan: It changes, and so there has been a shift in a lot of jurisdictions...not a lot, but many jurisdictions, to modify this rule about witness immunity when it applies to friendly...well, to the three types of lawsuits that we talked about. [inaudible 00:10:42] comfort...well, I guess, kind of comforts it, the law on this issue is a little unsettled, but at least in eight jurisdictions, it's very clear.

Craig: Maybe somebody on today's call will be a test case, and they can report back to us how the issue gets settled in their state.

Nathan: That is a good point, Craig, because I assure you, you do not want to be the test case for your state. So, that's why we're having the webinar.

Craig: Well, you're in the right place, so hopefully after today's webinar, we will equip you with the tools necessary to avoid becoming that test case.

Nathan: Or, if you are the test case, you will win the test case. So, there are seven states that say there is not witness immunity for expert witnesses who are sued by their clients, and these are the states: California, Connecticut, Louisiana, Massachusetts, Missouri, Pennsylvania, and Colorado. So, if you practice in one of these states, you need to be aware that anytime someone hires you, that person can and might sue you for your work as an expert witness.

Craig: Now, we're gonna talk about this more later, but when we talk about who can sue you, there might be two people. The attorney, perhaps, that hired you and paid you, you might have a contract with him, but ultimately, who 's the client?

Nathan: It would be the party to the lawsuit.

Craig: Right. So, in these seven states, you're at risk in the event that your work falls below the applicable standard of care.

Nathan: So, there's one state, the state of Washington, where they have found that witness immunity still applies to expert witnesses, so if you are one of the lucky few that...well, not few. One of the lucky experts that practices principally in the state of Washington, you are safe. Now, keep in mind, our practices, whether it's our law practice or expert practice, I mean, many of us are national. Some of us are global, so where you give the testimony and where you do the work might implicate which laws you would be subject to. So, you may be based in Washington and do your work in Washington, but then you go testify in a case in Missouri, and you open yourself up to liability by virtue of the acts of omissions that you commit while you're in the state of Missouri subject to the law of Missouri, even though you run back to the protections of the state of Washington afterwards. So, we're gonna give you some skills to potentially protect yourself through forum selection clauses later on.

So, as far as...and keep in mind, I mentioned that the law is unsettled. These eight states that I just mentioned, those are the states where we know that, either in the case of the first seven, that you can be sued in a friendly lawsuit like we described it, and in Washington you cannot be sued. The other 42 states, that issue does not come up, or at least we were not able to locate any cases that talked about that. So, if you practice in any of the other 42 states, you still need to govern yourself so that you will avoid any potential risk...

Craig: You know...

Nathan: ...of being sued.

Craig: I would anticipate that, as this issue comes up in more and more states, you're gonna see more states than just the seven because there's not a clearly defined list of blue states or red states, liberal states or conservative states. You have a mix of liberal states and conservative states as this issue comes up. It just makes sense to impose liability where somebody is reckless or careless in developing their testimony.

Nathan: And you can't always go by the numbers, but the fact that the score right now is seven to one, that kinda suggests to me that, you know, if I'm living in a state or have a judge on a state that hasn't reached this issue yet, I'm gonna see that seven states have reached it and found that there is no immunity, I'm gonna be more inclined to follow the seven states instead of the one.

Craig: Now, as we move through the presentation, if questions come to your mind, we're going to be taking a break near the bottom of the hour to answer your questions that you submit via WebEx. So, if Carol didn't say so at the beginning, make sure that you type your questions, and Nathan and I will be able to see them here, and then when we take our Q&A break at the bottom of the hour, we will get to them.

Nathan: All right, so that is, as far as friendly suits, that's kind of what the lay of the land is. As far as adverse witnesses, not as many states have hit that issue. There are two that...one that has kind of dealt with it and one that the rule is clear. West Virginia, the Supreme Court kinda dealt with it and said that somebody could file a lawsuit against an adverse expert witness, and that would not be a bad faith lawsuit. They didn't say that the client was good or bad, just that there would be a factual basis where you could file the lawsuit.

Craig: You know, and that's very telling. For instance, in many states, they recognize certain clauses of action such as...one of the more arcane ones would be alienation of affection, where you can sue an adulterer for taking your wife's affections away from you by engaging in an improper relationship. States recognize that cause of action, but there are no cases where anybody has ever succeeded on it. So, I think suits against the adverse witness is a category of expert liability that we are not going to see an explosion of. We haven't seen it, and I don't anticipate in my crystal ball that we're going to see a lot of it. It just doesn't make sense.

Nathan: Right. Courts are not gonna wanna hear, you know, from angry...people who lost in lawsuits, they're gonna be looking for somebody to blame, and courts aren't gonna wanna deal with lawsuits filed against experts because they may be an easy target.

Craig: You just have to sue them because they were too effective.

Nathan: That's right. That's right. "I didn't like your opinion. You did too good a job on the witness stand, so I will sue you." New Jersey has said, "No, we're not gonna allow those cases to go forward."

Craig: So, that takes care of suits against adverse witnesses.

Nathan: And then the last of our third threats, neutral or court-appointed experts, the court-appointed issue has not come up that I was able to find, but if you're a neutral expert where both parties hire you, Craig mentioned domestic cases if you're a psychiatrist.

Craig: Business valuation expert sometimes is hired by both parties.

Nathan: Something like that. In New Jersey and Vermont, you are subject to suit. Other states have not decided it yet.

Craig: And, you know, I think that makes sense because the expert has a duty of good faith and fair dealing with both parties, you know. You've got two masters that you're working for, and I think it is consistent with expert liability for the friendly witness to say, "Look, if you're working for two people at the same time and you're supposed to be neutral, then if you breach the standard of care, you might have liability imposed."

Nathan: So that dovetails nicely into what exactly you can be sued for. And we've touched on this a little bit already, but...

Craig: A couple important distinctions right off the bat.

Nathan: That's right. There's the preparation versus the substance distinction. So, preparation, the work you do from the time you're retained by the attorney/client till the time you step onto the witness stand, you're sworn an oath, and start talking.

Craig: Be, be, be prepared.

Nathan: Be prepared like boy scouts. And then, the actual substance of your testimony, what you say in the courtroom.

Craig: [inaudible 00:18:21] takes four walls of the courtroom. There's three of the four walls right there. That's the chamber of immunity in many states.

Nathan: That's right. In those seven states that we talked about, the seven deadly states, in those states you are subject to liability for errors you make during the preparation phase of your work as an expert. You are not...at least, most of them, you are not subject to liability for what you say on the witness stand.

Craig: One important exception, if anybody can guess what the one important exception is, we'll tell you later. But, put it up on the Q&A, we wanna recognize you if you can remember the one exception that every expert on this conference call should know about without thinking about it.

Nathan: And so, keep in mind that, as you're working the files in anticipation for...it's kind of a fine distinction because how you prepare and what you do leading up until your testimony is gonna shape what your testimony ultimately is.

Craig: I mean, consider that sometimes your preparation can be so inadequate, I mean, hopefully not, but that it would shape the substance of your testimony. You failed to prepare, therefore you said something that was completely or wholly inaccurate, and they go hand in hand. Now, you're not necessarily being sued for what you said. It was that you didn't prepare yourself to give the right information while you were there.

Nathan: And that's what's going to cue them into the fact that you didn't prepare well. When they hear a mathematical error or you offer an opinion that the other...perhaps the adverse opinion comes up and says, "Look, that just is not the standard in..." Looks like Mr. Ashford who's attending today is an aerospace expert. If somebody comes up and says, "Mr. Ashford's way off. That is not the standard for our industry," that's gonna cue your client and the attorney to a possible error that you made during your preparation. So, while you may not be subject to liability for what you say, you will be liable for how you're prepared to say it.

Craig: Or why you said it.

Nathan: Or why you said it. Exactly. And I would expect that in those states where this issue of law is open, where there's not a reported case on it, my best guess is that, if that case arose in one of those other states, we would see this kind of liability in the undecided states.

Craig: Yes.

Nathan: If someone is going to bring a lawsuit against you for a mistake you made in the course of preparing for your testimony or your work as an expert witness, what do they have to prove, Craig?

Craig: Well, they're going to have to basically prove that not only you breached the standard of care but that, but for your negligence, the party would have prevailed in the underlying action. And this is basically what we see in a legal malpractice case. It's a strange little creature where a party that's bringing the case has to prove a case within a case. You have to have a trial within a trial. You have to say not only that you were careless or didn't prepare, but that that was an outcome-determinative reason that the other party didn't prevail in the case.

Nathan: So, if there's another...this will look familiar to some of you. I mean, it's a negligence cause of action. You as expert owe duties to your clients to use a certain standard of care in your conduct as an expert witness. And if you fail to meet that standard of care and that failure causes the party to suffer some kind of damage, you may be liable.

Now, if your client loses the trial for some reason other than your mistake...let's say they get up on the stand and they're exposed as horrible liars, you know, they didn't really get hurt in the car wreck, or something like that, they are not gonna be able to prevail on a malpractice claim against you. But they'll have to prove, like Craig said, when they have the trial against you, that they would have won their case if it hadn't been for the mistake that you made getting ready for the trial.

And so, Craig, let's talk about that standard of care. What is the standard of care?

Craig: Well, it is a duty of care that's commensurate with the skill or proficiency the folks in your field would use, ordinary, skillful, careful, prudent professionals. So, look, let's recognize the fact that the 99 attendees are taking time to develop their skills as expert witnesses. That's above and beyond, in some cases, the skill and proficiency that you have to have, that basic level of skill to be a careful and prudent professional.

But, in addition to that, you need to be familiar with the science behind your opinions. You need to ask good questions. I mean, for those of you that are [inaudible 00:23:27] expert [inaudible 00:23:29] before, we encourage you to communicate with your attorneys and ask for more information when you need it, to not assume that you should necessarily form your opinion based just upon what you're spoon-fed, but to see if there's other information out there. Were you're doing those kinds of things that a careful, prudent professional in your field would do when testifying, you're not gonna have problems. It boils down to a lot of common sense, but it's when this degree of care doesn't meet the standard that the cause of damages can be stated. And then there's the causation element too, but that's the standard of care.

Nathan: So, we've talked about the three threats you face as experts, where these lawsuits are gonna come from. We've kind of talked about what the lawsuits will look like, what kinds of things will get you into trouble. There are some other dangers lurking out there, and these may come up even in those states that haven't reached the witness immunity issue yet.

The first...

Craig: Oh, come on. We haven't even gotten the...well, it's the last one coming up here.

Nathan: That's the last one.

Craig: No one has told us the main exception to witness immunity yet.

Nathan: Another danger that's gonna come up. So, the first one is you might still be subject to discipline by a professional association. If, in your profession or your work as an expert witness, you're affiliated with some organization, there are cases, and there's one out of the Seventh Circuit that says that, yes, even though there may be witness immunity, a mistake you've made as an expert witness may subject you to some formal discipline or informal discipline by that association.

Craig: It would probably have to be a fairly substantial and significant mistake, but that's what lawsuits are for. They're for substantial and significant mistakes made by folks. So, if you exhibit your incompetence as a, let's say, a physician in a deposition, and somebody ships that off to the state licensing board, you might have a problem.

Nathan: Well, and for lawyers, I mean, we may not be subject to civil liability. We may not have to pay any money to a client if we've made a mistake on their case, but that would not stop the Bar Association from...

Craig: Taking your law license.

Nathan: Taking your law license.

Craig: All right, what's the next one to watch out for?

Nathan: Now you can also be...state licensing board, which I guess is more like the Missouri Bar Association, but...

Craig: The big one.

Nathan: And this is interesting because remember, Washington said there is still witness immunity, but the state of Washington in 1997 said, yes, state licensing boards can still discipline expert witnesses. So, if you're a psychologist, not necessarily in the treatment of a patient, but as an expert witness you make a mistake, you can still be disciplined.

Craig: All right, watch out for...this is a big one. This is where witness immunity absolutely doesn't apply. What is it, Nathan?

Nathan: Hopefully this is not a problem for you, but it's perjury.

Craig: Perjury.

Nathan: Perjury.

Craig: Absolutely no protection for saying something that you know to be untrue on the stand. So, if somebody asks you whether you considered something in your opinion, and you didn't consider it, and you lie about it, you would have absolutely no protection from later suit if what you said amounted to a separate crime.

Nathan: That's what I was gonna to comment on. At that point, it's beyond a civil concern where you're gonna have to write somebody a check. It's you might go to jail or might have to pay a stiff fine for lying on the witness stand.

Craig: Now, not every lie is perjury. I mean, it has to meet a certain level, and each state has a little bit different definition of the materiality element of perjury, but it's certainly something to keep in the back of your mind.

Nathan: All right. That brings us to our first...we're doing two Q&A sessions. So that brings us to our first.

Carol: [crosstalk 00:27:28]. This is Carol. I just want to interrupt you for a second because they really want you to...actually three experts responded as perjury is the exception.

Craig: Oh, Carol...

Nathan: All right.

Craig: Hold on. Let's click over to the tab.

Carol: [crosstalk 00:27:43].

Craig: Let's recognize them. Where is that, Carol?

Carol: I'm sorry, what?

Craig: I said I'd recognize their names. Who are they?

Carol: Don Bacci [SP].

Craig: Okay.

Carol: I'm sorry. I have to scroll up through the chat, so bear with me a second. Margot Kunz [SP].

Craig: Congratulations.

Carol: And... I'm still scrolling through here, but anyway, I knew there were three, and I will find the other one shortly. But I have several questions for you. I don't know if you can see those questions.

Craig: I see those.

Carol: So, I'd like to read them to you.

Craig: That's...

Carol: Okay? And this question is from Will. Actually, Will is an expert in Missouri, and he asks, "An expert generally only performs work that is approved by the client, or attorney, or insurance company, however, based on the value of the case that can affect the type and level of services that are approved, thus, the standard of care is not a fixed point in that it all depends on, number one, the value of the case and, number two, what services have been approved. What are your thoughts on that?" So, basically, you know, an expert's given certain work to do, and how much control, I guess, is exhibited over how much of that work is done?

Nathan: Think of the standard of care, Will, as a heart surgery. It does not depend on how much you can actually pay your doctor. The standard of care is the standard of care, and you need to make sure that you can complete your assignment within the standard of care, regardless of the budget that you're given.

Craig: Although there is a range, I think that...

Nathan: It's a...

Craig: [crosstalk 00:29:28] level, though.

Nathan: I think that what you mentioned in your question that it's not a fixed point is absolutely right. It's a range of acceptable action. So, if the standard of care...and I don't know what kind of an expert Will is, but if Will is an accident reconstructionist, you know, if...most accident reconstructionists are gonna to go visit the crash site, are going to take some measurements, they're gonna take some pictures of the car, are going to do, you know...check some things off the list, well, maybe the highest, absolutely the highest standard is they're gonna do 100 different things, but an acceptable level is to do these 25 things. As long as you fall within the 25 to 100, you're gonna be fine. And the fact that an attorney says...you know, I've told experts before, "This is how much our case..." You know, this is not a huge case. I don't go, you know, write an article that's gonna be published, a peer-reviewed article on this issue, but, you know, as long as that expert's meeting my expectations, the risk of a malpractice suit goes down exponentially.

Craig: Yeah, but what happens when the attorney...I mean, this is just something to consider. Ultimately, who's the client that's gonna sue you? It's probably not gonna be the attorney that hires you. It's the person that you may never even meet. And if the attorney tells you, "Do this on the cheap. Don't consider A. Don't consider B. I just wanna focus on C," you need to still ask yourself the question whether your work will meet that basic, entry-level standard of care to the client because, when the case is over, the two codependents might be you and the attorney in the case.

Nathan: Yeah. And if you're uncomfortable with that arrangement where the attorney's saying, "Do it on the cheap," and you know that you just can't do a good enough job with that money...

Craig: Say no.

Nathan: Say no. Common sense. Yep. What's our next question, Carol?

Carol: Hey, that sounds like a very, very thoughtful answer, so thank you. The next question is from Joel, and he's asking, "Are we immune for what we say in the deposition?"

Craig: Yes, depositions in the four walls of the courtroom are the same. Anytime you raise your hand and swear to tell the truth, the witness immunity will apply in the majority of states that I'm familiar with.

Nathan: But there'd be the same limitation that if you do something wrong to prepare for the deposition, you know, as far as formulating your opinions, that's where it's gonna get you into trouble.

Craig: Preparation and substance, the substance of your depo testimony would be equivalent to giving the same testimony in the courtroom. Because, as experts, you know, many times your depositions are read in court, so it makes sense that we have a commensurate rule for depositions.

Carol: Okay. Now, this question is specific to patent infringement litigations, and the question is, "Are there liability issues that are specific to experts in a patent infringement litigation?"

Nathan: Really, I didn't see any. It's not to say there aren't any out there, but none of the cases that I, and this is Nathan, that I reviewed getting ready for today and that we've seen so far in this field have dealt specifically with patent infringement. You know, I'd recommend checking...and we don't do a whole lot of patent work here. You know, you could find a local attorney, somebody in the jurisdictions where you practice and have them do a little [crosstalk 00:33:03]

Craig: Yeah, I mean, you know, the Patent Bar is a special creature that not many lawyers have passed or practiced in front of, so I would definitely consult with a patent attorney about that because it's such a specialized area. Have to confess a little ignorance.

Nathan: Yep.

Carol: Okay. That's fair. I do have, actually, several requests, if you could please repeat the...is it seven states or eight states?

Nathan: Seven.

Craig: Seven.

Carol: Yeah, we've had several requests if you could please repeat those states for our attendees.

Craig: Give us one more question while Nathan's going back to find that slide. We'll put it up here while we're answering our next question.

Carol: Okay, the next question is, "Are the rules you're discussing different for deposition testimony versus court testimony?"

Nathan: No.

Carol: Okay. "Do you have case [inaudible 00:33:54] authority from Colorado regarding no extra immunity?"

Nathan: Oh.

Carol: I'm not sure.

Nathan: A case, the Colorado case, if somebody wants to send us their email address...

Craig: Shoot me an email. Shoot me and Nathan an email. I think that'll come up later. If somebody wants to send me an email. I don't know if that's on our presentation, Carol, but I can get that to you, and...

Carol: That would be great.

Craig: ...they can [crosstalk 00:34:22]

Carol: I don't think it was specific to that particular state. Now, here's a question from John, and I would say John also did offer perjury.

Nathan: Very impressive.

Carol: So, we have to answer John's question.

Craig: That's right.

Carol: It's, "How careful do we need to be in our reports and our depositions? How careful do we need to be?"

Craig: You need to meet the standard of care. It's difficult to say. I mean, I say that not to be flippant, but that that's the legal standard. And so, if it's, you know, a simple opinion that you can formulate by reviewing a few things, it's generally accepted in your field, you know whether the Frye or the Daubert test is going to apply to your testimony depending on your jurisdiction, you write up the report, you write concisely, and reach your opinion, I think you've met your standard of care.

Nathan: Yeah, and, I mean, there's another question somebody put in the Q&A about, you know, how big a deal is it if you're $100 dollars off on your calculation versus, you know, a $100,000 mistake. And while that may not, you know...really a hundred dollars is probably not gonna kill your case, but what it leads to is, if I'm the attorney that's asking questions or cross-examining you, and I uncover a $100 mistake, I'm gonna use that against you and get the jury or judge thinking, "Well, if this expert made a $100 mistake, what are the other mistakes that you've made in your opinions?" And so, nobody's perfect, you know, but you have to be as spot-on and as accurate as you can because that is what's going to trigger this liability. It may not be the first $100 mistake, but that $100 mistake can turn into big problems if the jury doesn't believe you.

Craig: And, you know, as a trial lawyer, I would tell every lawyer that's trying to learn about cross-examination, whenever you've got a witness explaining, he's off-message. So, if you're explaining mistakes, you're not spending any time stating what your opinion is, how you reached it, and why you're confident in the results that you're offering to the jury. Good question.

Carol: Yeah. I see that you have the slide with all the states that are listed for all of the viewers, so for all of you that had wanted to know the states, here they are. Craig and Nathan were able to go back and get those for you. I do have another...

[crosstalk 00:36:54]

Carol: Yeah. I do have another question. This one I find interesting also. "What is the best wording to use in giving an expert's opinion? Is it I believe or in my opinion...I'm sorry. I said it incorrectly. Is it I believe or in my opinion better, one or the other, and does that give any protection?"

Nathan: It might. If you weren't in court, anytime you say, "I believe," you protect yourself from defamation. But, if you're in court, I don't know that it matters. I think it's whatever you're most comfortable with. Try not to say, "In my highly-paid, expert opinion." But, you know, "In my opinion, I believe..." You know, I think opinion suggests that you're basing it upon something. Belief is subjective, so, "The facts that I considered show this, and based on what I reviewed, I determined, I found, I measured." You know, I think action-type words like that convey a strong message of confidence when you testify.

Craig: Well, we're gonna have some time for some more questions towards the end. We're gonna dive back into the presentation with the second half.

Carol: Okay, one other thing I wanted to let everyone know, I also have a lot of questions about whether this presentation will be made available to all of the attendees, and the answer is yes. So, everyone will be receiving a copy of a PowerPoint tomorrow by email, so I just wanna reassure all the attendees and answer their questions. So, I'm gonna turn the presentation back to Craig and Nathan, and we will entertain questions at the end of the presentation.

Nathan: Okay.

Carol: Thank you.

Nathan: Thank you. All right, so we talked about, you know, whether you are liable and what's that form that liability might take. Now, let's talk about how you avoid it. The best opportunity I think you have to avoid it is in your retainer agreement, right at the beginning of the case.

All right, now here's takeaway number one for everyone on the call. If you're not using a retainer agreement in every, single, cotton-picking case, that's okay. Just confess it out loud right now and say, "I will not do that anymore." I don't care if it's the smallest case or the biggest case that you're gonna work on this year. Have a retainer agreement that's executed before you do any substantial work in any case all the time. And it's gonna become clear to you why that's important in a slide or two. And there are three things that Craig and I talked about that you should have, or could have, in your retainer agreement that will help you out with this liability issue.

Craig: I mean, there's many things in the retainer agreement. Again, we're just focusing on ones that bear upon your potential liability, things that might help you if you find yourself in hot water later on.

Nathan: That's right, and the first one is the liability waiver. Craig, do you wanna explain what a liability waiver is?

Craig: Some states allow a party to release the party from their future negligence. Not all states, but some states allow, for instance, Missouri, a health club. You can get your patrons to release you from future negligence if you follow certain rules in Missouri. So, to the extent that your state allows a future liability waiver, you need to determine what language is required and include it. It's gonna vary state to state, so we can't give a one-size-fits-all answer to everyone on the call.

But, knowing whether or not your state approves of liability waivers is critical, so consult with an attorney in your jurisdiction. Get an answer to this question, and if you can do it, have the attorney draft a clause to include in your retainer agreement.

Nathan: Because what it says is, "If I mess up, you can't sue me." I mean, at its very core, that's what it means. And so, you can see how powerful that potentially is. But, because of the power, courts are often reluctant to permit those things. It's like Craig said, you need to make sure you understand what the law is about liability waivers.

The second thing you should have if you can in your retainer agreement that will save your bacon is an indemnification clause.

Craig: Now, that's where we say, "Look, if the client comes and sues me, attorney, you agree to indemnify me or hold me harmless from any damages that I might have to your client because I don't get to meet your client. I don't get to pick your client. I'm really hired by you, the attorney, but I recognize that my liability might flow through to your client. So, if you want me to work for you, you're gonna have to help me out."

Nathan: Somebody asked a question on the Q&A about, you know, doesn't the attorney have a responsibility to prepare me as an expert before a deposition, or to help me on the witness stand? Yes. And so, that's kinda the idea behind an indemnification clause, is if part of the reason that your preparation for the case hasn't met the standard of care is because of a failure of the attorney, that indemnification clause shifts the expense and the liability to that attorney.

Craig: For experts that hire us to draft their retainer agreement, I refer to this as the attorney motivator clause because it motivates the hiring attorneys to make sure that they're doing a good job preparing the experts.

Nathan: So, like Carol said, you'll get a copy of these slides. This is a sample indemnification clause. Do not just copy and paste this into your retainer agreements. Talk to attorneys in your jurisdiction. Make sure that this works for you. But generally, this is the type of language that we see in indemnification clauses. That didn't work out as well as I'd hoped here. Okay. But just generally, this is what I'd say what an indemnification clause looks like.

Craig: A little homework for everybody, talk with your attorney that you use and get an indemnification clause and a liability waiver clause that will work for you, and include them in your retainer agreement.

Nathan: And we're not trying to shill for other attorneys. It's just that we, you know, what is it? An ounce of prevention...

Craig: Ounce of prevention, pound of cure.

Nathan: Pound of cure. So, the last thing is not necessarily that I would include in a retainer agreement will not avoid liability...

Craig: But it sure will potentially deter some sue-happy litigant from coming after you, and it's called the forum selection clause. Now, the forum is not just a place in Rome. It is where a lawsuit is brought. So, if you're the Washington State expert that comes to Missouri to testify, and by some unfortunate event, you get sued, you can have in your retainer agreement a forum selection clause that says if you're going to be sued, you have to defend the suit in Washington State. So, that would make the Missouri plaintiff come to Washington to sue you.

Now, listen, and listen carefully because even if you include all of these things in the retainer agreement, only parties to the agreement are bound by that. Now, what do I mean by that, Nathan?

Nathan: Well, it means you're skipping ahead, Craig.

Craig: I'm skipping ahead a slide.

Nathan: We had a very thoughtful question. But that's all right. Here's a sample retainer of forum selection clause. Talk with an attorney.

Okay, so the question that Craig just posed is perfectly timed. Who signs the retention agreement?

Craig: How perfectly timed it was.

Nathan: Kind of. A few seconds early. But, Jack Ettienne [SP] in the Q&A, he kind of brought this up. He asked would a hold harmless agreement with the expert's client protect the expert? So, that raises the question, who signs the retention agreement? Well, we've really fleshed this out already. We've got two potential folks that you might have problems with in the future, the attorney and his client. Have them both sign it.

And, really, from experience, and maybe Craig's experience is different, but in my years of practice, I have not once had an expert ask me to have my client sign a retention agreement.

Craig: I'm giving you 20 years of attorney experience right here. Never in 20 years has an expert asked my client to sign their agreement.

Nathan: And that's a missed opportunity for experts because if you had a chance to cut off liability before the lawsuit's even filed by including a couple paragraphs in a retention agreement and having the attorney's client sign it, you should be taking advantage of that opportunity.

Craig: It's like a $5 fix to a potential $5,000 problem. I mean, it just makes good sense. It's common sense.

Nathan: All right so that's the first way to avoid, is using a retention agreement. The other way, again, not so much of...it avoids your exposure, and that's E&O insurance or, you know, it stands for errors and omissions or professional liability insurance.

Craig: Now, it's completely different from your general business liability insurance, if you're an engineer. I mean, it's a separate coverage that you need to go out, shop, and purchase.

Nathan: And some of you might already have it if you're a professional, if you're a doctor, or an accountant, or an engineer. Some of you may carry errors and omissions coverage already. But you need to check your policy, talk to your insurance agent, to make sure it'll cover your services as an expert witness.

Craig: And insurance agents, bless their little hearts, they don't understand necessarily what being an expert witness is or what it entails, and they may offer you a policy that is not tailored to meet the risks that you're exposed to doing your expert witness work. So, you need to make sure that your agent understands what an expert is, what you're doing, what the range of exposure is.

Because if you're testifying on a mass tort case, I mean, you have the potential...consider the Vioxx case, $456 billion. Let's say you were the expert that accidentally failed to prepare and torpedoed that case. There's not enough insurance in the world to cover that liability. You need to make sure that you let them know if you're doing class-action work, that the range of potential exposure is great, and get a limit of insurance that is appropriate to protect you and your assets.

Nathan: And so, if you don't have it, get it. Why do you need insurance? We're gonna move through some of this stuff a little quickly, but as Craig mentioned, there's a rising number of malpractice suits against lawyers, and it's starting to and will continue to bleed over into lawsuits against experts.

Craig: And you can't defend even a simple lawsuit. I mean, I can't imagine you could hire an attorney out of your pocket, in most states, and defend a case through trial for less than $50,000 or $75,000. I just don't think that that would be realistic. If you're in a market like Denver, where, you know, attorneys are $450 or $550 an hour for an average attorney, I mean, those costs are multiplied five-fold. You know, for other jurisdictions in the rest of the country, you know, I can't speak to that, but it's obviously very expensive no matter where you are. Small price to pay to offset a potential large risk.

Nathan: All right, this is a sample policy that we found, and this is for a real-estate agent. But generally, this would be something that you might see. This is the declarations page. Some of you may have seen it. There's a couple things I wanted to point out. First, this fourth paragraph, it's blank on this sample, but there's an insured services section. This is where the policy will describe what kind of work that you're doing is covered by the policy. And so, again, this would be a good place to look to see if, you know, if you're a doctor, if, you know, if your malpractice coverage would apply to your expert witness work.

Craig: And, you know, if you ask that that be included or specifically listed on the dec page, they'll put that on there. If you don't ask, sometimes, insurance agents don't know to put it on there. But if you specifically say the insured services that I want covered is, you know, medical expert witness testimony, they'll put it on there.

Nathan: This paragraph three is an interesting paragraph, retroactive date. Typically, these errors and omissions policies are claims-made policies, which means you get insurance coverage...if the time period that you have coverage, within that time period there is a claim made, even if the misconduct...

Craig: Five years earlier.

Nathan: You messed up on a lawsuit five years ago. But somebody doesn't file a lawsuit against you until you have this insurance, your insurance is gonna cover you and that retroactive date will give you the lookback period, basically, for when you'll have coverage.

Craig: Now, here's another important point, and you doctors know what I'm talking about when I say tail coverage. If you get out of the business of providing expert testimony, you need to buy tail coverage, which says, "Look, I'm not gonna do more work in the future, but I need to buy coverage for anything that comes up within the statute of limitation after I stop." And that keeps you from having to keep a policy enforced until a 5 or a 10-year statute of limitation expires.

Nathan: This one in the liability section shows how much coverage you'll get.

Craig: That's where your $456 billion...

Nathan: That's right. For your Vioxx mess-up. And then retention, that's kind of a deductible, what you'll have to pay out of your pocket upfront before the insurance coverage kicks in. So that's a dec sheet.

And then the next slide shows this paragraph A, what we insure is really the nitty-gritty of the errors and omissions policy. We won't go through that, but you can see that typically it'll cover monetary damages you would've been forced to pay, but also, it'll provide a defense. They'll hire a lawyer for you.

Craig: And, you know, the other thing to think about too is these policies are not necessarily forum policies. You should find yours, dig it out, dust it off, and read it, and some of you hopefully won't be surprised to see what's in it. You know, some of the experts might want a policy where no suit is settled unless you consent to settle it. I mean, there's different provisions in there that you can ask for. So, make sure you review yours, and make sure it covers your needs for the work that you're doing.

Nathan: Good. So, get some insurance. Be over-insured. All right, another good way to avoid liability is by understanding Daubert.

Craig: What's Daubert?

Nathan: If you don't recognize the word Daubert, then you need to figure it out because that's a good way of understanding. Daubert is a federal court case, a Supreme Court case, that governs how expert witnesses...it gives courts discretion on allowing or disallowing expert witness testimony.

Craig: Sorry to the phrenologists that study the bumps on the head.

Nathan: That's right, and generally, the focus in a Daubert issue is whether the methods you used to render your opinions are reliable.

Craig: And think of how that dovetails with preparation. Remember, liability comes about by virtue of your preparation, not the substance of your testimony, so is everything that you're doing to prepare your opinion designed to not only reach the opinion but to reach it via reliable methodology. And I think that makes...a lot of common sense in that.

So, as we move onto the next slide, it is common sense.

Nathan: Common sense. Really covers a lot of sins, especially in the area of expert testimony. And there are things that...these things are gonna be common sense ideas. We'll rip through them because you know them, but you really need to put them into practice. It's just simple things that you've heard before and you know that you need to do, but it's the execution that will prevent any liability in the future.

First one, you need to make sure you're telling the truth at all phases of your work as an expert.

Craig: We're not used car salesmen. We're scientists, so during the courting phase, don't overstate your ability to help the attorney with his case.

Nathan: And if you have bad news for me, the hiring attorney, tell me. Don't try and cover that up with something else. Again, it goes back to making sure you're preparing properly. You're knowing the facts of your case, any legal issues that will affect it.

Craig: Focusing in, the big takeaway right here, I think, on this slide is deadlines. I get an expert, hold them to calendar, the trial deadline, he calendared it for his vacation. Said, "I need you in trial in four weeks." He said, "Sorry, I'm taking my family to the Bahamas."

Nathan: "I'm not coming."

Craig: And that's how he handled it. "I'm not coming. Sorry." So, we ended up having to dismiss the case and refile it, and it caused a number of problems and headaches. We did not sue that expert, but it left me darn close to suing that expert. Because he couldn't calendar a deadline which was the trial deadline.

Nathan: And we've not hired him since.

Craig: No. And I never miss a chance to point out to my local attorneys exactly who did that to me and why. So, making sure that you meet the deadlines is going to avoid probably 70% of the problems that you face as an expert witness.

Nathan: And the deadlines are important because it'll affect your time management. If you get a call from an attorney that says, "Hey, I've got an expert witness disclosure deadline in two days. I need an opinion..."

Craig: You wanna talk outcome determinative. You miss an expert disclosure deadline on a case where expert testimony is required and you miss that deadline, and I don't need to try very hard to prove that you torpedoed the case.

Nathan: And if you as an expert say, "No problem. I will have this opinion to you in time for you to file your disclosures with the court," and then it doesn't come because you haven't had enough time to get all the facts, and the law, and do your investigation, you're gonna be on the hook because you committed to have that report to the attorney.

Craig: Hey, excellent question from Lamar, real quick, on the deadline issue, what if you only have a two-week block of time for trial? Hey, you know, they need to work with you, but if they've hired you to show up for trial, you better be prepared to show up for trial.

Nathan: And keep in mind, that's not always the attorney's fault. Some courts, that's just how they set trials, is you're gonna have a trial at some point during the next two weeks, so be here. And so that may be the best information that the attorney has, as well.

Craig: Charge extra for it.

Nathan: Yep. And then three quick hits. Be selective on the cases you take. If you're a neurologist, don't take a cardiology case. That's common sense, but it may be even more nuanced than that. Make sure that you are only testifying in your true field of expertise.

Craig: Don't sue to collect a fee. We, as lawyers, really think long and hard about suing our clients because there's this nagging little thing called the counterclaim where we sue them, and then they file some counterclaim against us as an attorney saying that we made some mistake. I would anticipate, as an expert, if you sue to collect a fee, you might expose yourself to a counterclaim for breach of contract or negligence that you wouldn't have otherwise faced had you not gone after the person. Chances are, they're not paying you because they weren't happy with something you did.

Nathan: So, I mean, you certainly are entitled to sue to collect. I mean, we sue folks that don't pay us for our work, but we're very selective about who that is that we end up doing it for.

Craig: Then again, the selectivity solves a multitude of problems when you intake potential cases to work on. You know, take the ones where you have the luxury of a little bit of time to formulate your opinion, that interest you. The cases that you hate and the attorneys that you hate are going to be the ones that you procrastinate on, which is the one that you run the risk of missing the deadline on, which exposes you to the most liability. So, if you don't have a good feeling about it from the beginning, you know, remember, you can be selective.

Nathan: Ken makes a good statement about that last-minute call from the attorney. Don't make your deadline my crisis.

Craig: What if I'm willing to pay for it?

Nathan: You need to make sure that you know the risk going into it. So, Carol, why don't we dive back into a little Q&A, and then we'll wrap up?

Craig: This was a good seminar today. I enjoyed it.

Nathan: Yep.

Carol: Yeah, I have actually learned a lot myself, so thank you guys. A couple questions, and here's one from David, and David asks, "The retainer agreement. What if it is a dispense case, and the insurance company can't be forced to pay and won't sign a little retainer agreement, and the attorney won't sign it because the insurance company is the original, I guess it's the originating source that is paying?"

Craig: I don't think insurance companies are entitled to expert testimony. The plaintiff's lawyer. But that's a good point. I mean, insurance companies are a force unto themselves, and if your best practice is to get the retainer agreement, I think you need to tell the attorney that hired you, you know, "I have to have this."

Here's another way to do it. You know, get into, do the work, let them pay you, and when they want you to show up for the deposition, and I'm not saying this facetiously, say, "I'll be there at the deposition when I have your insurance adjuster sign this retainer agreement and return it to me."

Carol: Okay. That's a pretty straightforward answer. And here's a question from Margot. She works in multiple states, and so how does one accommodate the liability waiver in each state? Do you have to have one for each state, or...?

Nathan: Oh, yes.

Craig: Well, now, think about this. I'm thinking very creatively. Missouri, choice of law provision, when we do our forum selection clause, let's also do a choice of law provision, and you could select Missouri law will govern the terms of this agreement. Missouri law recognizes future liability waivers. You could still pick Washington State as your forum, and you can have a Washington State court applying Missouri law to your liability, and that would take care of the liability waiver issue in every state that recognizes the choice of law provision, which...I mean, you might visit with your attorney that represents you locally, but a choice of law provision might solve that problem completely.

Carol: Okay.

Craig: I love Missouri law. Who doesn't like Missouri law, Nathan?

Nathan: Some days I don't.

Carol: Here's another one. "If you are an expert in a case in federal court, are liability waivers allowed?"

Craig: It's an issue of state law.

Nathan: Yeah, it'll depend on the state that the federal court is sitting in.

Carol: Okay. All right. That answers that question. And from David, "Which state jurisdiction controls the potential for suit? The expert state, the hiring attorney state, or the state where I guess the action is being heard?"

Nathan: This is taking me back to law school. [inaudible 01:00:18]

Craig: It is where a substantial portion of the events giving rise to the completed tort occurred. So, if you did most of your wrongs in Washington State, then that law would apply to the tort. If you did most of the errors and omissions in Missouri, that would be the state that would apply their law, so it just depends.

Nathan: That's another reason that choice of loss provision would be really helpful and...

Craig: Yeah, and these choice of loss questions are complicated for lawyers, and so we're able to contract away the decision to decide in advance which state's law would apply.

Nathan: And say this is where the lawsuit will happen if it happens, and this is what law we're gonna use.

Craig: I mean, everybody that has a credit card in their pocket, there's a choice of law provision in your credit card agreement that probably says that Iowa law applies.

Nathan: Yep. So, use those things to your advantage in your retainer agreement.

Carol: Okay. All right, guys, we got a couple more questions here. "Is it reasonable the client will sign the retention agreement, and how would you advise your client that was asked to sign such a retainer agreement?" Ooh.

Craig: Me, as an attorney that hired an expert, number one, I picked the one I wanted, right? I really wanted Lamar to work for me because he's an excellent mathematician and makes no math mistakes. He sends me his retainer agreement that Nathan advised him on, and I say, "You know what? We really need Lamar. Here's Lamar's agreement. Let me get this signed so we can get him on the case." And that's not too far from how I'd advise the client.

Nathan: It's a bargaining thing. I'd say, "Look, this is just what comes with getting..." If Lamar's the best expert out there in the field, I'd say, "Look, if you want Lamar, and you do because he's good, then you need to sign this. If you want to take a lesser expert and run the risk of not getting as good an expert witness, then we can go find somebody who doesn't require you to sign this retainer agreement."

Carol: Okay. Now I have a question from Edward, and he asks, "What, if any, protections does an expert witness have if he is incorporated and operating as part of that incorporated company?"

Craig: Well, let me explain it this way. This is Craig. My law firm's name is Douglas, Haun, and Heidemann, P.C., and when I'm driving my company car down the road and I run over Nathan's wife, she doesn't care that I was working for Douglas, Haun, and Hedemann, P.C. at the time. She's gonna sue Craig Heidemann because I ran her over. We render services, and as an expert, personally, so yes, you're incorporated, you're an LLC, but if you make a mistake, you're the one that's liable.

Nathan: Although, I mean, in some cases, if you're employed by somebody, your employer might be responsible to pay any kind of damages that you're on the hook for.

Craig: Generally, though, that's only where the employer has sufficient insurance to cover the liability. If you're working for an employer or a master that doesn't admit the liability or that doesn't have sufficient assets to cover a judgment, then you're gonna be on the hook. And again, that's a matter of state law, but general common law says that you'd be liable individually, and it would be up to...it's always up to the plaintiff to decide who to sue.

Nathan: Well, and there would be nothing to prevent you from going out and getting your own insurance coverage, even if the company you work for doesn't want to modify the retainer agreement to include those provisions we talked about. You can still go get some E&O insurance that'll cover you individually.

Craig: And let's say you work for an engineering firm, and you also do expert work on the side, you can have your name added as an additional name insured to your employer's policy so that, you know, it covers both the company and you individually.

Carol: Okay, I think that pretty well sums up all of the questions that we have today.

Nathan: Carol, there was one more... Hey, Carol?

Carol: Yes?

Nathan: Larry asked the question a while ago I wanted to hit, and we didn't cover this topic, really. He said, "What about an expert who gets sued for excessive fees?"

Carol: Oh, I didn't see that. Okay, go ahead.

Nathan: It's on the Q&A. That's a different creature from what we've talked about today, that distinction between preparation and substance is about if you've made a mistake, and as far as in rendering your opinion, or preparing to offer your opinion. The [inaudible 01:05:06] is, "I just don't like what you charged me." And so that potentially...I mean, fights over the dollar amounts, you can sue people for what they haven't paid you, and they can sue you for what they have or what they're being charged. So, the stuff we've talked about today does not cover that. I mean, those are fights you'll still have to face as an expert witness, and the immunity issues we've talked about today do not apply to a fee dispute.

Carol: Okay. I think that pretty much sums it up as far as questions go. I think I've captured most of them. What we will do is if any of the attendees have additional questions, we will provide you with...you can actually send them over to TASA, and we will make sure that those are forwarded to both Craig and also to Nathan.

At this time, I really do wanna thank Craig and Nathan for this time that they've spent researching and preparing for today's program. We've shared a lot of really valuable information. I also want to thank the attendees for their interest in TASA's webinar program. Without them, also, we would not be able to provide this kind of information, which is so valuable to share.

I also would like to remind the attendees that if they're not registered on our website, or if they need to update any information, to please go to our website, and please do so. This is, again, another way of updating information and keeping everything current to provide to the clients, attorneys, and all of the clients of TASA that contact us for quality experts.

And also, before leaving the presentation today, I ask that the attendees complete the survey at the end of the program. That will help us to plan for future webinars such as this. And again, I thank you all, and again, Nathan and Craig, it's always a wonderful experience, and enjoyable as well, I might add. So, thank you again, everyone, and that is the conclusion of our program today.