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LEGAL CENTS: Seven ways to save on experts

By: Jane Pribek//November 2, 2011//

LEGAL CENTS: Seven ways to save on experts

By: Jane Pribek//November 2, 2011//

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Jane Pribek

An expert, per Oscar Wilde, is “an ordinary man away from home, giving advice.”

He’s probably being well compensated, too.

Experts often are the biggest expense in any case, after all. One of the great unknowns going forward, said New Richmond attorney Tim O’Brien, is how Wisconsin’s recent switch to Daubert will affect expert costs. It might eliminate some expert testimony, he said, but it will increase costs for some, too.

“Your expert’s going to have to spend more time with you on the front end to make sure it’s a proper subject for expert testimony,” he said, “and it might cost more to make sure your expert is properly qualified under the new rules.”

Regardless, there are ways to cut expert expenses, O’Brien and others maintain. Here’s how:

1. Consider whether an expert is necessary

Particularly in Wisconsin, where jurors endure winters just like everyone else, experts in some premises liability cases may be unnecessary, said Cathy Rottier of Boardman, Suhr, Curry & Field LLP in Madison. “Do you really need an expert to talk about the way the downspout is angled?” she questioned. “I think most property owners know not to angle their downspout to create an ice patch on their sidewalk.”

Ron Pezzi of Peterson, Johnson & Murray SC in Milwaukee said that when opposing counsel has superfluous experts, he makes a motion to exclude their testimony early on. Another strategy that’s often underused, Pezzi said, is to file a motion pursuant to sec. 908.03(18), Learned Treatises, in lieu of live expert testimony reaching the same conclusions.

2. Skip the independent medical exam

They’re standard in personal injury cases, which make up the bulk of civil litigation, Rottier said. Mediating a case early can sometimes result in settlement before that expense has to be incurred.

Along these lines, Pat Brennan of Crivello Carlson SC said, the exam could sometimes be bypassed by deposing the treating physician. Rather than employing a subpoena, Brennan said, he “works it out cooperatively” to compel attendance. It’s rare that a doctor shows displeasure by charging exorbitant fees, he said. In that instance, he’ll ask the court to set a reasonable fee.

3. Depose “fact experts”

Brennan defines “fact experts” as people who have useful and credible experience with the workplace or site of an alleged injury, such an as emergency room nurse or the design engineer for a manufacturer. Sometimes your clients’ competitors can be helpful, as well. If you’re defending a ski hill owner, a competitor potentially can testify to their own safety practices, which mirror the client’s.

“They offer something unique to the jury because of their experience and job training,” Brennan said. “The jury is frequently more impressed with this ‘hybrid’ than they are by a hired gun.”

4. Look locally

O’Brien said attorneys sometimes overlook area college professors or doctors, which can be a mistake. “I find they’re much more willing to talk about things,” he said, “because they look at it as a problem to be solved, rather than a case to be won.”

5. Consider retirees

Potential experts that are no longer working may have more time on their hands, O’Brien said, and bring excellent credentials. Some retirees might be willing to accept less compensation, too, because they’re not dependent on witness fees.

6. Negotiate

Ask to pay with a lump sum or to cap the number of hours billed. Emphasize that you’ll help make the work easier with organized materials and pointed questions, so a full-blown report becomes unnecessary.

7. Leverage technology

Hiring a nationally recognized expert is costly mostly because of travel expenses, Pezzi said. But these days, technology makes videoconferencing easy and much more cost-effective.

Jane Pribek can be reached at [email protected].

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