Using Expert Witnesses: Get Your Money’s Worth!

Insurance litigators commonly retain insurance expert witnesses to opine regarding insurance bad faith, custom & practice, coverage technicalities and claims issues. Once you locate an expert matched to your case, we offer some suggestions to “Get Your Money’s Worth” for the expert fees paid by you or your clients. Proper use of your expert’s knowledge should improve your arguments during litigation. While these remarks focus on insurance litigation, I believe they are just as applicable to other litigation when experts are being considered.

Preparing for deposition or trial:
We often receive attorney inquiries regarding our services shortly after depositions have been taken, discovery is closed, and a court date is imminent. Nearly always expert witnesses have to read such depositions thoroughly to prepare a court-credible expert opinion letter.

You may wish to consider using a “consulting expert” long before depositions begin or discovery is closed. We are not attorneys providing legal advice. We do not practice law. We do not represent clients as their legal counsel. We cannot advocate for your client, only for our opinion. Your expert can provide you a depth of technical insurance knowledge in their particular area of expertise. We can suggest discovery and deposition questions to improve the quality of your (potential) courtroom arguments. Conversely we may suggest coverage or claim areas to avoid depending on insurance the case issues. We can be your sounding board for carrier custom & practices, insurance agency practices, claims issues. We have likely seen cases similar to yours.

I have read depositions where questioning explored insurance issues having little or no bearing on the case. In all these cases a 15-30 minute advance discussion with their expert before deposition would have provided better focus with deposition questions. Experts provide you much better value contacted in advance, rather than one week before a deadline. With a snapshot of case facts, basic case documents and a short review your expert can bring focus to your strategy. Focus on applicable coverage parts. Focus on avoiding areas likely to damage your case. If we simply confirm you are on track with your arguments that alone should add value.

We filter through technical insurance issues, thus freeing you to focus on case legal aspects and questioning strategy during deposition or trial preparation. As “consulting experts” in the early stages, we can help your deposition preparation in many areas. For example:

• Can bad faith allegations be supported?
• Are there other areas to look for coverage?
• Are there further subtleties of coverage?
• What should be insurance industry Custom & Practice?
• Were carrier claims procedures & standards met?
• What are the conflicts between two different policies?

Case Study: An attorney retained me to analyze a trucker’s cargo claim. His client hired a specialty trucking company to deliver a $1,000,000 machine, 275 miles from the Port of Houston to north Texas. Even on a low-boy trailer, the machine was high clearance requiring bridge detours and special routing. The shipment proceeded without incident for 274 ½ miles, when the trucker ran the machine in to a bridge beam ½ mile from his client’s manufacturing facility. The machine was a total loss. Case analysis revealed multiple purchase orders, multiple bills of lading, 5 potential insurance carriers, a flurry of emails and letters, questionable FOB address, and overall confusion as to who was legally responsible for the damage. This case was early in discovery, thus my entire billing was for 7 hours. The attorney later told me our research and discussions focused his efforts on who best to pursue for claim payment. As important, I suggested who would likely be a waste of time to pursue for damages. Because they contacted me early hours and days of wasted legal effort and money was avoided. Just as attorneys know the legal system, we are accustomed to nuances of the insurance industry.

Expert reports:
Expert Witnesses receive attorney calls needing expert reports or opinion letters in 3-7 days. On one case I was retained to review 1,000 pages of documents, do peripheral research, join conference calls with the attorney, client, and other parties involved and produce my expert report in 4 days. All this while unraveling 5 years of their insurance train wreck. Experts can and do provide such short-fuse reports. However, we simply cannot give you our best work trying to complete what is often a 40-60 hour project in 15-18 hours.

Reasonable lead time helps us ask you better questions, better analyze your data, perform research and provide you much better advice. No different than when attorneys prepare a case for mediation or trial. Attorneys know proper preparation improves their overall case presentation to the mediator, arbitrators, jury or judge. Expert witnesses understand attorneys live and die by turnaround time. We merely suggest given moderate lead time, we can reduce your expert cost and help improve your odds at the courthouse. Last minute expert searches result from two realities of the legal profession:

• Attorney time pressure and deadlines.
• Attempting to control costs of litigation.

If you think your case “might need” an expert you will likely qualify several prospective experts. Suggestion: An early expert search with nominal or no cost provides you several advantages. Most experts will consult initially for 30-40 minutes at no cost. These short “chats” with 2 or 3 experts may help you uncover stronger arguments to pursue in your case. When a case does go to trial, you have a giant head start on your expert search or it has already been done.

Case study: An attorney called me one Monday morning facing a Federal expert report filing deadline Friday at 4pm. Her expert witness had withdrawn the previous Friday admitting she was over her head in the litigation process. I received case documents Tuesday morning. The case involved a large explosion, fire, 2 death claims, 10 destroyed homes, and multiple carriers subrogating claims against plaintiff and their general liability carrier. This attorney simply had no luxury of time.

She was defending an insurance agent against alleged errors & omissions. Since I had just finished 2 other cases, I could dedicate the next 3 ½ days entirely to producing her report. The report was e-filed perhaps 90 minutes before the filing deadline—a dangerous situation. I produced the best report I could, but there was no opportunity to offer my normal depth of analysis, documentation, or advice for which we pride ourselves. Given the complexity of this litigation, I could have confirmed certain of my assumptions with industry research, done in depth coverage analysis and offered pointed “insurance” questions for discovery, deposition and trial.

Who pays the freight?
Plaintiff attorneys often front litigation costs and are repaid only if their client prevails. Defense attorneys normally bill hourly fees, court costs and other legal costs (including expert fees) to the insurance carrier or insured. No secrets here.

The worst scenarios we see are when an attorney has very difficult facts to prove, even weaker insurance arguments and no chance to prevail in court. Worse, they believe their case is bulletproof when in reality they are booking a cabin on the Titanic. After spending hundreds of hours and many thousands of dollars they are headed to certain defeat. A competent expert witness knows never to presume any decision mediators, arbitrators, juries or judges might make. However, your expert has likely seen or cases similar to yours. An early telephone call can suggest whether:

• The carrier is/is not acting in bad faith.
• Additional coverage may be available.
• Your client simply does not have coverage.
• Your client might have coverage under some other policy.
• An agent “did/did not” provide adequate client service.
• Opposing counsel is confused as to “insurance coverage” facts.

Case Study: I was retained by an insured whose agent had done a less than stellar job of managing his insurance needs for several years. The agent’s negligence involved coverage structure, coverage placement and extreme apathy in servicing the account. My client’s attorney was concerned about substantiating the agent’s incompetence.

The case eventually required some 50 hours of time to reconstruct 4 years insurance history. Very early on I could see the pattern of incompetence by this agent (and agency). We established the agent’s incompetence over 4 years had damaged this attorney’s client some $375,000.

Thirty plus years as an insurance agent made it easy for me to opine that even minimal attention from this agent the previous 4 years would have eliminated the damage. I was able to direct the attorney to coverage not previously pursued. Experts offer different skill sets analyzing claims practices, loss reserve analysis, bad faith issues, products liability, etc. My background happened to fit this case.

In this case, the client was “paying the freight”. This particular case gave me professional satisfaction of having provided value during the engagement. As always, the end goal was to improve their position before possible mediation or court.

There are many common sense things you can do to help your expert help you “Get your money’s worth!” Hopefully some of the above ideas will streamline your process and thus maximize value for the expert fees you pay.

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ABOUT THE AUTHOR: Burl Daniel, CPCU, CIC, CRM
Burl Daniel entered the insurance business in 1973 and worked twenty-five years as a retail agent. A diversified group of client industries provided a broad range of insurance experience. 

Copyright Burl Daniel, CPCU, CIC, CRM

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.