{00848816.DOC}

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

{00848816.DOC}

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:

{00848816.DOC}

Surround yourself with the best people that you can find; delegate authority;

and don’t interfere as long as the policy you’ve decided upon is being

carried out. – Ronald Reagan on picking the right person

Organization doesn’t really accomplish anything. Plans don’t accomplish

anything either. Theories of management don’t 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

{00848816.DOC}

the necessary attention to the case that concerns you? What is the expert/investigator’s

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/investigator’s 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.

{00848816.DOC}

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 insured’s 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 company’s

lawyer after speaking to dispatch? Does dispatch know to remind the driver to

immediately contact the company’s 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 company’s 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 company’s billing guidelines with respect to expert/investigator retention? Do

you know the company’s 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

{00848816.DOC}

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 expert’s 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/investigator’s 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

{00848816.DOC}

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 client’s recourse as to you:

{00848816.DOC}

I mean, there is no arguing. There is no anything. There is no beating

around the bush. “You’re fired” is a very strong term. – D. Trump on who

is the boss