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EFFECTIVE AND EFFICIENT MANAGEMENT OF YOUR EXPERT
IN THE LESS-THAN-CATASTROPHIC CASE




By



MARC H. HARWELL, Member
Leitner, Williams, Dooley & Napolitan, PLLC
801 Broad Street, Third Floor
Pioneer Building
Chattanooga, TN 37402
(423) 424-3908/fax 266-5490
marc.harwell@leitnerfirm.com
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Effective and efficient management is founded on sound principles of strategic
planning and effective implementation. In order to plan and carry out a successful
strategy, a lawyer must pick the right team; evaluate risk; manage expectations; budget to
appropriately address risk and meet expectations; and then effectively manage to ensure
that activities are performed in accordance with the plan. Knowledge, selecting the right
team members based upon your knowledge of key factors, communication, and control
are essential to the preparation of an appropriate plan and to performance according to
plan.
Know your team; know the facts; know your adversary; and know the tools and
the rules that are available to you.
Your team consists of the insurer, the insured, the managing attorney, the
expert/investigator, and the driver. Of these members, the expert/investigator is the only
person you have the opportunity to select. (Witnesses can become quasi team members.)
Knowledge of team means having in place people whose strengths, weaknesses,
styles, propensities, rates/costs, etc., are well known to you. A less-than-catastrophic
case may not require that you have a $300.00 per hour accident reconstruction expert
with you at the scene to conduct a detailed scene analysis. However, to achieve the best
result that you can with reasonable concerns of cost in comparison to exposure in mind,
picking the right expert/investigator for the case is one of the most important decisions
that you will make. Consider the following advice:
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Surround yourself with the best people that you can find; delegate authority;
and dont interfere as long as the policy youve decided upon is being
carried out. Ronald Reagan on picking the right person

Organization doesnt really accomplish anything. Plans dont accomplish
anything either. Theories of management dont much matter. Endeavors
succeed or fail because of the people involved. Only by attracting the best
people do you accomplish great deeds. Colin Powell on picking the right
person

Wise men say, and not without reason, that whoever wishes to foresee the
future might consult the past. Machiavelli on learning from mistakes

What are the qualifications of your expert or your investigator pending retention
of an expert? In considering this question and as you consider how to manage that
expert/investigator, consider the following: Do you have the curriculum vitae for the
expert/investigator, and have you forwarded that curriculum vitae to the client and
discussed the same with your client? How does the expert/investigator present as a
witness? Have you personally met with the expert/investigator? If you do not have a
personal history with the expert/investigator, have you questioned the references and
determined the shortcomings or weaknesses of the expert/investigator? Have you
discussed with the expert/investigator his/her current work demands and ability to devote
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the necessary attention to the case that concerns you? What is the expert/investigators
history with respect to timely response and follow-up? What kind of note-taking
behavior does the expert/investigator have? How does the expert/investigator question
witnesses (see the attached study regarding the proper questioning of a witness as a tool
to help you efficiently educate the expert/investigator, associate, paralegal, etc.)? Have
you discussed at length with your expert/investigator team member what should be
photographed and what should not be photographed; the vantage points of the
photographs; the use of cones or other markers to serve as reference points for the
photographs; the measurements that need to be taken; who is to be interviewed and who
should be recorded; billing rates in general; billing rates in terms of travel time; and
equipment/technology assets and expertise. What does the expert/investigators web
page say/represent? Have you read any of his/her published materials? Have you read
any of his/her deposition transcripts? Have you checked him/her out just as you would
an adverse witness Facebook, Google, Linked-In , etc. Do you have as a team
member a qualified and a capable alternative to the accident reconstruction expert that
you may use in a non-catastrophic case?
In addition to the foregoing areas of concern that should be explored as you select
the right expert/investigator, knowledge and effective communication should be more all-
encompassing than your interaction and understanding of the expert/investigator. Your
knowledge and level of communication with the insurer and the insured prior to making
the selection will likely affect the decisions that you will make upon receipt of the actual
assignment.
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So try to develop your understanding of the operations, preferences, problems,
and expectations of these important team members. In doing so, you should improve
your chances of making the best decision. Have you worked with the insureds safety
director/risk manager to ensure that the driver is educated on his post-accident
responsibilities to himself and to the company? Does he know to contact the companys
lawyer after speaking to dispatch? Does dispatch know to remind the driver to
immediately contact the companys lawyer? Does the driver know to whom he should
talk and what he should say and should not say and with whom he should not talk after an
accident? Have you read the companys handbook; seen its orientation materials; read its
web page; read its safety protocols; etc.
Have you worked with the insurer regarding policies and protocols? Do you
know the companys billing guidelines with respect to expert/investigator retention? Do
you know the companys experiences with an expert/investigator or expectations with
respect to the expert/investigator retention? How quickly does the insurer pay expert
bills? Have you taken the time to discuss with the insurer and the proposed expert what
may be expected in light of all these factors?
Knowledge of the facts is essential to analysis of the risk and is essential to the
management of expectations. In regard to this point, please consider the following:
Management by objection works if you first think through your objectives;
90% of the time you have not. Peter Drucker (born 1909 and generally
known as the Father of Modern Management) on having a plan from the
outset
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Delay in the good and thorough acquisition of the relevant facts that are essential
to your analysis of risk unnecessarily delays the risk analysis. Delay of the risk analysis
usually increases cost to the client in terms of case management and in terms of liability
exposure. Delay can lead to lost evidence. Delay can lead to lost early settlement
opportunities. Delay can result in the setting of an inappropriate or detrimental tone
(confrontational versus conciliatory; aggressive versus deferential).
Knowledge of and the effective use of certain tools and rules will also help you
effectively and efficiently manage your expert/investigator. In specific, consider the use
of a document preservation letter to give yourself time to analyze the facts, assess the
risk, and make a decision as to what expert/investigator needs to be retained and what
work that expert/investigator needs to do in order to effectively present his/her opinion
for your purposes. What scene photographs and vehicle photographs can you get from
witnesses at the scene? What surveillance cameras are available? What information can
you obtain from the event data recorders of the vehicles? What physical evidence can
you effectively preserve for your experts consideration without involving the expert in
the acquisition of the information?
Knowledge of your adversary is another factor that should be considered and
discussed with your client as you select the expert/investigator. What is your particular
expert/investigators history of interaction with adversary counsel or perhaps even with
your adversary (more likely if the adversary is another trucking company)? If counsel
has already been employed, does your adversary counsel usually take unreasonable
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positions that increase costs to your client, or does your adversary counsel usually take a
more reasonable position that does not unnecessarily increase the litigation costs? Is
adversary counsel slow to respond; slow to develop a case; prone to continuances; and
prone to miss deadlines all factors increase costs to your client? How knowledgeable is
adverse counsel? How effective is adverse counsel on cross-examination of accident
reconstruction experts? Who does adverse counsel typically retain as an expert, and how
does your proposed expert stack up? How much work has your adversary done to
investigate the details of the accident; preserve evidence; prepare proof; etc.?
In addition to picking the expert/investigator and developing a strategic plan, the
actual task of management is crucial. In this regard, consider the following:
Managing is like holding a dove in your hand. Squeeze too hard and you
kill it; not hard enough and it flies away. Tommy Lasorda on the
qualities of managing
You control the assignment. You control the expert. The accident reconstruction
expert typically wants to know everything. Depending upon the risk and depending upon
the expectations, the accident reconstruction expert may not need to know everything. It
is incumbent upon the lawyer to tailor the scope of the work to the plan. It is incumbent
upon the lawyer to sufficiently define the scope and control the work to guard against
excesses.
In sum, it is your case; it is your reputation; it is your client. You cannot afford to
get it wrong. The following quote applies not only to your authority to control but also to
the clients recourse as to you:
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I mean, there is no arguing. There is no anything. There is no beating
around the bush. Youre fired is a very strong term. D. Trump on who
is the boss