Steven Babitsky, Esq., co-author of The A to Z Guide to Expert Witnessing, shares tips about becoming an expert witness and advice on how to start an expert witness business. He covers expert witness marketing, qualifications, income potential, and more. [22 min.]
Tell us a little bit about your background.
Well, I was a personal injury lawyer for 20 years, and I enjoyed doing that. And after retiring from being a personal injury lawyer, I started SEAK, which stands for Steven, Ellen (my late wife), Alex (my son who works in the business) and Karen (who works in the business). We do conferences and seminars and publish books, a lot of which have to do with expert witness testimony. We do 30-50 conferences a year, as well.
How are expert witnesses used by attorneys?
Attorneys retain expert witnesses to evaluate claims, to see if they have a valid claim, to write a report, which would be used to settle or adjust cases, to form an opinion in a case, to see if their claim is a viable claim, and to testify at deposition, and/or in court to express their opinions when cases are tried or litigated.
What qualifies someone to be an expert witness?
The law says that you can be qualified by various methods. Most people think that, for example, you have to be a doctor, or an accountant or something like that. But the law says that you can be qualified if you have the education, training, or experience. And it’s in the alternative, so that any one of the three is sufficient. So you can be a doctor and be qualified to testify about medical issues, you can be an accountant and testify about financial issues, you also could be a car mechanic to talk about mechanical auto issues. Even though the car mechanic doesn’t have further education, his experience would qualify him to be an expert. And there are hundreds of different fields of expertise which people could be an expert in.
So you could be in a trade such as carpentry, or be a nurse, or real estate agent, and conceivably start an expert witness service?
Yes, I mean it will depend. The amount of business you would get would depend on your qualifications and the amount of litigation in a certain area that would require your testimony. So, for example, a doctor – an orthopedic surgeon – would get a lot of business because a lot of people who go to orthopedic surgeons eventually file lawsuits for car accidents and stuff of that nature. If you’re an aviation person and there is an aviation issue or an air crash or something, you could go into that. There are dozens and dozens or hundreds of different areas of expertise, maybe more than that. You could be in law enforcement, you could be a mechanical engineer, you could be a civil engineer, you could be a nurse, you could be a CPA, you could be a construction person, you could be any one of hundreds and hundreds of different areas of expertise. And some will generate more business than others because there’s more litigation. Generally speaking the more litigation, the more there is a need for expert testimony.
Talk a little bit about independent medical examiners. Are there special qualifications needed to become an IME?
An IME is a little bit different than an expert witness. An independent medical examiner, generally speaking, is a physician, whether it be, again, an orthopedic surgeon, or a trauma surgeon, or whatever. And what they do is they’re referred by usually an insurance company or insurance company lawyer. If somebody who’s made a claim and they’re questioning the extent or the nature of their disability, they’re sent for an insurance exam or an IME exam. The doctor will examine the person and write up a report and report back to the insurance company about the extent of their disability or impairment. So they might say they’re totally disabled, they can’t return to work. Or they might say they have a 5% impairment, they can’t lift over 20 or 30 pounds. They might say there’s nothing wrong with the person, and this information is used to litigate and/or settle worker’s compensation, personal injury, long-term disability, short-term disability and various other claims. So it could be used for any number of things.
What skills, qualifications, or attributes make you attractive to an attorney seeking an expert witness?
Well, first and foremost is your education and training. Do you have skills? Are you qualified in a particular area? What is the level of your expertise? And, in addition to that, you have to be able to articulate your opinions, you have to be able to speak well and go to court when necessary. You have to be able to write well in terms of writing up a report. You need to be able to analyze information, just like they do on CSI or other kinds of forensic shows on television. You need to be able to look through a whole bunch of information and see what is legitimate and what isn’t, and formulate an opinion and be prepared to express your opinion in writing – and in court, if necessary.
What are some ways to market your services as an expert witness?
Most expert witnesses start by developing a Web page, and developing a niche. A niche being a small area of expertise that is very, very narrow, in which they can dominate a certain market. After they have a web presence, then a lot of experts utilize expert witness directories. SEAK has one and there are three of four other excellent expert witness directories. And by contacting attorneys, insurance companies and so forth who would generally hire experts to testify for them.
Is it important to compile a comprehensive list of references and recommendations?
I don’t think so, actually. I think it’s much more important to be qualified, to understand the necessary items to do a good and thorough job, to have a very good resume or curriculum vitae, or CV as they’re called in the industry, and to be able to speak in an articulate fashion with the attorney when he or she calls you about your particular area of expertise. The attorney will usually call the expert to talk to the expert to see if they can “rock and roll,” at least on the telephone, to see if they understand the issues. While having references certainly can’t hurt, the attorney probably will make that decision by talking to you and/or if it’s a significant case, meeting with you in person.
What kind of hourly rates do expert witnesses typically charge?
Expert witnesses can charge a significant amount of money depending on the area of expertise. They can go from a civil engineer or let’s say an arborist, a tree expert, might charge $100-150 an hour. High powered medical experts, economists and other people charge $400-500 dollars an hour, and I’ve seen at least a few people who charge $1,000 an hour. And that’s because they have a national reputation, and are in tremendous demand, and also because they’re involved in high-stakes litigation. So if you’re a lawyer and you’re litigating a case which involves, let’s just take $100 million, it’s not that important how much the expert charges, because you need to win the case. So they don’t care if the expert charges $10,000 or $50,000. If, on the other hand you’re involved in damage to a tree and the whole case is worth $5,000, then the expert can’t charge that much.
Should a new expert witness charge lower fees to compete for business?
No, actually. It’s counterintuitive. Most experts figure that they will charge a small amount because that’s the way normally it is done in business to compete with other businesses, so if Apple charges $1.99 or whatever they charge to download a song, then Wal-Mart will go in there and charge $1.79. This is not that kind of a business. This is a kind of a business that’s built on reputation, integrity, credibility and expertise. And actually the experts that charge too little are looked down upon. The example that I give is if, God forbid, you or a member of your family needed open heart surgery would you go to try to locate the cheapest open heart surgeon you could find? Would you go to an open heart surgeon that advertised on the side of buses that says, “I do open heart surgery for $1,200?” The answer would be no, because you wouldn’t trust them and you’d be afraid to use them. It’s the same thing for experts. The experts that charge too little will probably not be hired because the attorneys know that they don’t know what they’re doing.
In addition to hourly fees, is it customary for your out-of-pocket expenses to be reimbursed, such as food and lodging and travel?
Yes, I mean most experts are reimbursed. Most experts should have some kind of a retainer or written contract with the attorney, and it should provide in there that if you have any out-of-pocket expenses, the attorney should reimburse you. Whether that be for FedExing, copying, overnight things, travel, telephone calls and lodging or whatever. As long as the attorneys know that they’re going to be charged for it and as long as the experts don’t abuse it. If people ask for a $500 dinner, they’re not going to be overly happy. If you go to get a sub and you charge them $10 or $12 for dinner or $15 if you go to a chain restaurant, they’re not going to complain about that.
As an expert witness, could blemishes on your professional record such as disciplinary actions be raised by opposing counsel to discredit your testimony?
Yes. It’s just like your mother said when you were going to school and you were getting in trouble, and she said, “It’s all going to become part of your permanent record.” Well, it’s the same thing here. Any part of your permanent record is fair game for bringing up. So if you had discipline problems, if you were charged with a crime and convicted of a crime, I mean a serious crime, I’m not talking about a speeding ticket. If you were involved in moral turpitude, if you were involved in loss of a license, if you were involved in any fraudulent dealings or anything like that, the attorneys will locate it fairly easily now, and they can bring it up to cross examine you and try to discredit you.
Do you see that happen fairly often?
Yes. The attorneys are very adept at finding information about experts. Most of the experts are used to that, but if an expert, for example, has all kinds of problems, they won’t be an expert very long. They’ll be “knocked out of the box,” and they’ll be disqualified, and once you’re disqualified as an expert in one case, there could be some carryover into the next case.
Is it important to be able to explain things not only in technical jargon, but in layman’s terms that a jury can understand?
Yes. I mean, in a jury trial the judge is not the one that makes the ultimate decision, it’s the jury. It’s twelve men and women, lay people, who usually are not lawyers, who are usually not experts. Now some juries are pretty savvy and intelligent, and just because a juror doesn’t have a high education doesn’t mean they’re not smart. The lawyers talk about the collective wisdom of the jury. Each person may bring their own experiences, but when you put twelve people together they’re pretty smart, and the expert has to distill the information that he spent ten or twenty years learning into a half an hour or an hour, and be able to explain it in a fashion that can be understood. If it can’t be understood by the jury, then the jury will get upset, they’ll think the expert is talking down to them or making fun of them, or just discredit him because he’s not articulate enough to explain it. So you have to be able to explain what the jury needs to know in a fashion that they can understand.
Do most expert witnesses prefer to work in their own local area, or expand their business by traveling throughout the country?
It would depend on the kind of expert you are. Some experts get travel. Some experts confine themselves to a county. Some experts confine themselves to a region, some to a state, some to the Northeast, and some experts travel nationally. By and large I would say most experts confine themselves to their state, and maybe some surrounding or contiguous states. So they might, if they’re in Massachusetts for example, go to Rhode Island, Connecticut, New Hampshire, Vermont, or something in the New England area. If you’re a high-powered expert and you have expertise which is hard to get, some lawyers may bring you in across country at substantial expense because they want your kind of expertise.
Is there a lot of competition to be an expert witness in most fields?
It would depend on the field. Some fields have a tremendous amount of competition, for example with medical witnesses there’s a lot of competition. But that doesn’t mean that you still can’t do well, because there’s a lot of need for expertise. The question is not really how much competition there is. The question is how many experts are there for how much business. So if taking an example of, let’s say, a neurosurgeon, there may be 10,000 neurosurgeons, maybe 1,000 or 500 of them who testify, and if there’s thousands of cases there is plenty of business to go around. On the other hand there may only be 200 arborists, or tree experts, but there may only be 1,000 cases to go around, so it depends on the number of cases and the number of people that are trying to get that work.
Are there people who are full-time expert witnesses, or is this something that’s typically done part-time along with your primary career?
Most people start out part-time. They’re an engineer, they do their engineering work, they build bridges and so forth, and in their off hours or during certain parts of the day or parts of the week, they do some expert witness consulting and testimony. As experts generally get older, after they hit fifty or sixty, a lot of them tend to retire from their normal, regular professions, and then some of them go into expert witnessing full-time. So they may have been a civil engineer for thirty years, and now they’re 65 years old, they retire from being a civil engineer and going into the office every day, but they’re more or less a full-time expert.
Do expert witnesses typically just write reports, or are they very often called to testify?
There’s a winnowing out process in expert witness testimony. The largest number of consultations are by the lawyer to talk to the expert and get an opinion. Then some of them are called forward to write a report, that’s a smaller number. After they write a report an even smaller number go to court and give a deposition. And maybe that’s 10%, 15%, 20%. Then to actually go to court and have a trial, you’re down to probably 5%. Most of the cases are resolved or settled at some point along the way before the trial starts. So actually going to court and testifying in front of a judge and a jury is probably well under 5% of the assignments.
Talk a little bit about the process of cross examination. What techniques can expert witnesses use to survive it?
I think the most important thing is that they have to know their field. They shouldn’t underestimate the power of the attorneys and their expertise, nor should they underestimate them in finding out information. So the expert has to be honest and truthful. If they are honest and truthful, they’re much less vulnerable to cross examination. In addition they have to stay within their true area of expertise, and not get involved in tangential issues which will drag them, make them much more vulnerable to cross examination. Doing a high quality job, following a protocol, following a procedure, doing high-quality work, writing good reports, proofreading them, being prepared by retaining counsel, all are ways of surviving and thriving during cross examination. And the other thing is that you have to be a kind of a person that can “rock-and-roll” with adversity. If you’re the kind of person that if somebody asks you a difficult question you have an anxiety attack, this is not the line of work for you because there’ll be a lot of questions asked, and that’s part of the litigation process. It’s an adversarial proceeding in which lawyers will ask hard and difficult questions to help win their case. And the people that do the best are the most qualified and that aren’t intimidated easily by difficult questions and answer them as best they can and move on.
What are the biggest mistakes you see people make when getting started as an expert witness?
Usually they don’t get involved in any training. They don’t read any books, they usually have a very poor idea of what they should be doing, and then they make some basic mistakes. For example, doing shoddy work and getting involved in cases they shouldn’t be getting involved in. Most of the times the new experts don’t get retainer agreements, they don’t get paid up front, they don’t get paid at all, they charge too little, they do things that they wouldn’t be proud of later on. And unfortunately a lot of these mistakes become part of their permanent record, so that even though they learn from their mistakes, it’s now difficult to “un-ring the bell.” So my recommendation to these people is that before they run off and start becoming an expert, that they get some training, read some books, learn from people about what they need to do before they open up shop. It would be the equivalent of a person who’s an engineer starting up an engineering practice before he got any training. Or an orthopedic surgeon without any training. You wouldn’t do too well. Well, it’s the same thing with being an expert witness. Getting the training, getting the experience, learning something about your field, reading, researching what you’re going to be doing, learning the forms, and so on and so forth can be very invaluable. Getting a couple of books may cost a few hundred dollars, but can save you thousands and thousands of dollars, and can help build a long and successful career.
Any other advice for someone considering starting an expert witness business?
I think that people should think about if they’re suited to this kind of work, if they enjoy confrontation, if they’re not afraid of confrontation. I think the experts need to be intellectually curious. If you’re the kind of person that’s intellectually curious, you like to solve problems, you like to look at complex situations and try to simplify them, you like to come up with solutions, you are articulate, you enjoy working in a fast-paced environment, then I think you might enjoy being an expert witness.