April 13, 2012

Guidelines for Your Subject Matter Expert: Initial Client Contact

Our initial blog posting with resources for first time expert witnesses and seasoned witnesses alike was very well received. This is actually a prequel – the steps and processes important at the earlier stages of an engagement that work together to make an expert witness successful. 

Guidelines for Your Subject Matter Expert:   Initial Client Contact  
In a previous blog posting, we talked about the deposition -  how to prepare and how to conduct yourself at it. Now, we will discuss the work that has to be done long before the deposition.
1- Preference: Determine if you want to be a SME for plaintiffs or for defense or for either. Some consultants are for plaintiff only, others are defense only, while others will consult for either side. 

2- Identify Any Conflicts: During the initial contact with the potential client, have the case identified. This is very important to ensure that there is no conflict of interest. If it happens that one of the parties is a person or firm for whom you are now consulting or have recently consulted, there is no further discussion. No project.  

3- Interview: Assuming there is no conflict, the potential client will, after having read your curriculum vitae (CV), interview you over the phone. Listen. Don’t talk. Listen to learn about who claims who did what to whom, and who wants what from whom. Your potential client will outline the case for you. Then, when it’s your turn to talk, ask your potential client if he/she has any questions for you. They may or they may not. Ask this before and after you talk. At this time you explain what you believe you will need to review to form an expert opinion. 

4- Initial Document Review:  The potential client may send you some overview documents so that you can verify basics in the case and determine if you are a good fit for this engagement. Be careful not to get too involved in document review prior to signing a contract. A cursory review of general documents is all that is appropriate at this point. You may be asked to sign a Non-Disclosure Agreement before the documents are sent.

5 - Scope of Engagement - Unlike other consulting projects, you cannot estimate the time that will be involved. Some cases run on and on while others settle quickly.  You will have periodic telephone “meetings” with your client to monitor the progress of the project/case. Be sure to discuss this expectation with the client during contract negotiations so that there is no misunderstanding about the number of hours you will be billing.

6 - Payment:   A very important point to remember is to determine with your client how you will be paid for your services. Here is where your legal cases are different from your other types of consulting projects. In most other consulting projects one person is responsible for paying you. That is not always the situation in these cases. Ask, “Who pays for what and when do they pay?” Sounds so simple that you may think you don’t need to ask. Unfortunately, it is not always that simple, unless you set the rules up front, in your contract. Your client must realize that relationships are at their best when bills are paid on time.   

7 - Multi-Client Relationships:  There are times when law firm ABC, your client, will work with law firm DEF who may then also send documents to you. This happens occasionally, especially if the case is called an “MDL” case, which means Multi District Legislation. It means the court has asked the attorneys to include a few cases together. These are similar cases with the same alleged infraction and the same defendant, and the court asked for consolidation.

This may mean that you are doing work for people other than your primary client. You don’t want to find out after you have done much work that ABC tells you to bill DEF for a portion of your work. That should have been established up front.  DEF may not have the same guiding principles as your primary client. Indeed, even some attorneys are slack on payments, and some are very slack.  

One way to avoid this is to have your money before you do the work. While you don’t know how much work will be needed in such cases (mentioned in # 6 above) you can ask for increments in advance of your work. For example, it is not uncommon for a SME to ask for 25 hours payment before starting the work and then as the project progresses, to ask for additional 25 hour incremental advance payments.  Remember, you want no surprises regarding your fee payment. You and your client should determine before you start the project what works best for you both.  

8- Confidentiality Agreement and Contract: Assuming you have favorably impressed the potential client enough to have him/her want your services, you sign the confidentiality agreement and the contract and the potential client becomes your client.  

9- Establish Contact Protocols: You mention to the client that you will prepare a review file for each document you review and that you will talk on the phone first before sending any of the files via e-mail. In fact, you will send nothing directly case related without talking on the phone first since anything you send is subject to Discovery. That is when your work is shown to the “other side.” Discovery phase is pre-trial; each side can request evidence from the other side. Your phone conversations are still privileged. In this regard you also establish the names and contact information for all persons with whom you can communicate case-related information.  Secretaries and paralegals are very important in your relationship. Since attorneys may often be in court or at deposition, or unavailable for any reason for days at a time, be sure to establish the identities of the persons whom you copy on e-mails and with whom you can speak on the phone.

Addressing these issues at the onset of the engagement will set the stage for a smooth relationship with your client and allow you to focus on the technical aspects of the case going forward.  Look for a future blog posting with tips for the document review stage of the engagement. 

The author has been a Subject Matter Expert in cases involving pharmaceutical products, laboratory results, medical devices, and foods. He has testified in personal injury cases and in cases involving disputes between two or more firms. For more information, view the CECON consultant profile: Former FDA Employee, Regulatory Consultant, Expert Witness and Pharmaceutical Chemist

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