Following her attendance of the FEWA 2018 National Conference in San Francisco, FEWA Member and San Diego Chapter Board Member Sandy Highsmith, DMD, FAGD wrote a review of the two presentations given by keynote speaker Jeff T. Makoff of Valle Makoff LLP. These presentations were given on day one of the conference, Friday, April 27 and were entitled: "What Trial Lawyers Look for When Choosing an Expert," and "Interview Skills for Experts: How to Win the Beauty Contest." Read Sandy's review below!
I had the opportunity to attend two morning sessions of the 2018 National FEWA Conference on April 27th. Jeff T. Makoff, of Valle Makoff LLP, gave two presentations. The first one, “What Trial Lawyers Look for When Choosing an Expert”, addressed several issues involved with retaining an expert. The second presentation, “Interview Skills for Experts: How to Win the Beauty Contest”, continued the discussion.
Tips were given if you were the first or second expert to be contacted. Makoff emphasized talking on the telephone instead of using written communication in the pre-retention phase. The retaining attorney wants to hire an expert who will give realistic estimates and stick to a budget. Be sure to let the attorney know if you cut time or give a discount. Makoff recommended not charging ridiculous retainers. Attorneys don’t like searching for experts. They would like the first expert contacted to be the right one. So, when the call comes in, it’s up to the expert to win or lose the job. My favorite quote of Makoff’s is “Be yourself or tell me who you are trying to be, so I can hire that person.”
Once hired, the expert needs to advise the attorney as soon as possible what must be conceded. State where the expert’s opinion fits into the case. Be sure to review bills for overall fairness. Billing issues need to be raised proactively. Bill monthly unless the attorney requests a different time frame. Makoff said it’s more important to have efficient billing practices than to be concerned about the hourly rate. If an additional expert is needed, tell the attorney as early as possible. The lawyer needs to be the one to make major cost-benefit decisions.
Sometimes the court wants an expert who can help the judge to be fair and creative. An independent expert, to advise the court, will be hired. It’s critical that there is a lack of conflicts. Communication ground rules need to be clarified, as well as a budget and timetable.
Makoff said to not think of cases as good or bad. The goal is to identify the best case. He said there’s always a best case. Tell the hiring attorney what the other side can and will prove. Don’t try to win the case, because you don’t know the whole case. Ask yourself if there is anything that either side could use to declare bias. Invest in the case, because the attorney is investing in you when you invest.
He differentiated between being an expert consultant and an expert witness. Assume that all work product will be discoverable, if you transition from consultant to testifying expert. Remember that credibility is as important as substance. Don’t overstate your qualifications. Be sure to say what skeletons you have. Don’t accidentally contradict testimony or work. Concede what you need to concede without a fight. Treat all lawyers in the same manner. If a deposition attorney tries a hypothetical question, don’t try to skirt the question. Say “If the facts were limited to what was presented, then it’s reasonable”. Experts don’t get called to the witness stand, if the attorney feels they are winning the case. If the lawyer has confidence in the case, putting an expert on the stand is risky.
If you will be working with the Plaintiff’s counsel, remember that they want an expert who has charisma and is fine with emotion in the courtroom. It’s important to make the case look clear and simple. If you will work with the defense counsel, it’s important to come across as fair and not a hired gun. They want an expert who will pick the other side’s expert apart, while putting a good face on the defendant. They want help to value the case for settlement purposes.
Makoff interjected humorous stories to emphasize certain points. The speaker encouraged questions throughout the sessions. It led to lively and fun discussions that were both entertaining and informative. I loved hearing colleagues ask questions and exchange ideas. I highly recommend that FEWA members attend next year’s conference to hear high quality presentations like this one.
Sandra K. Highsmith (Sandy), DMD
Vice-President of San Diego Chapter