Engaging Experts
After 25 years helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On this podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Engaging Experts
Engaging with Risk Management and Compliance Expert, Frederick Fisher
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In this episode...
Today's guest is Frederick Fisher, founder of Fisher Consulting Group, a loss control and prevention consultancy, as well as an expert in risk management and compliance. He is a sought-after speaker, presenter, and holds a JD from Lincoln University Law School.
Expert witnesses are not advocates, according to Mr. Fisher. Winning the case is the purview of the attorney, not the expert. Answering questions truthfully, while not volunteering more than is asked is the key to a successful expert witness performance.
Check out the entire episode for our discussion on cross-examination tactics to look out for, the impact of technology on experts, and rush-jobs.
Introduction to Frederick Fisher
Speaker 1This episode is brought to you by Roundtable Group the experts on experts. We've been connecting attorneys with experts for over 30 years. Find out more at roundtablegroupcom.
Speaker 2Welcome to Engaging Experts. I'm your host, Noah Balmer, and today I'm excited to welcome Frederick Fisher to the show Now. Mr Fisher is the founder of Fisher Consulting Group, a loss control and prevention consultancy, as well as an expert in risk management and compliance. He's a sought-after speaker and presenter and holds a JD from Lincoln University Law School. Mr Fisher, thank you so much for joining me here today.
Speaker 3Oh, it's my pleasure. I hope I don't scare everybody away.
Speaker 2Not at all. Let's jump into it. So you've spent over 50 years in the liability services sector. How did you first become involved in expert witnessing?
Speaker 3I guess I'd already been in an area of insurance now called specialty lines, and I had. At the time I was the owner of an independent claim adjusting firm and also we acted as a third-party claim administrator where we actually were acting as if we were the claim department of an insurance company. And specialty lines insurance really is a phrase that deals with what's called professional liability insurance. So the kind of claims we were handling were claims against lawyers and accountants and architects and engineers and a lot of insurance agents and brokers and a lot of real estate agents and brokers. We also handled some MedNel although I tended to stay away from that way too real, but we handled a lot of dental malpractice cases. And what have you? Over time, you know, you start seeing number one patterns and you think to yourself, wow, this claim was preventable, all they had to do was this or all they do had to do with that, and sometimes it was really just documenting something which you didn't do. Oh, you know, and so the phrase came along. But if you didn't, if you didn't do, oh, you know, and so the phrase came along, but if you didn't, if you didn't write it down and document it, it didn't happen, and so that. So I developed this expertise and I started publishing articles on how to prevent claims. I even, I think in 1981, even wrote a book for real estate agents and brokers, which to my knowledge may be may still be the only book written on how to do things so you don't get sued. Wow it was. It was called broker beware selling real estate within the law. And so, and I was getting high profiled in the sense that I was writing a lot of articles that were being published in the national trades, and somebody I knew called me up one day and he had this real estate malpractice case and he said you know, you're the perfect guy that could testify to this. Would you be willing to consider being hired as an expert? And so that's how that started in 1988. And it was kind of fun.
Speaker 3And once I learned the way to really handle things which took a couple of cases, two or three cases, before I kind of realized, hey, you're making some mistakes here, let's rethink this, so to speak. I just started handling it and you know, I you know doing some, and I knew enough attorneys certainly that were interested. I had to be careful with it because I had a business to run, and so I'd only take a couple of cases a year, maybe, or two or three, and that would be about it. And uh, one thing led to another. But I always figured, you know, someday I may actually retire, but you know, you still have to have a reason to get up in the morning. So I figured, who knows, I may end up, you know, wanting to do more extra witness work than I'm currently doing, and so that's kind of how it all fell into place.
Speaker 3And then, you know, I am a deep diver. I only take cases, I agree with. You know, I'm not dependent on the, the money, uh, knock on wood, you know. Uh, so I can afford to turn cases down, and I do repeatedly. Or if the attorney is really up against the wall, I said, look, the best I can do is this I'm not going to go over here, I'm going to go deal with this slice, so to speak. You know, that works for you, fine, but I'm not, I'm not, I'm limiting it, you know. And and I will make that disclosure and deposition, for instance, there's a couple of things to unpack there.
Speaker 2So you were talking about when you were very first getting started. It helped to get a couple cases under your belt. What were some of those earlier mistakes or things that you learned that made you a better expert from when you very first were getting started?
Speaker 3Not advocating, not being an advocate number one, suddenly realizing it's not my job to win the case, it's not my job to try and win the case of deposition, it's my job to answer the questions truthfully. Right, that's all. Answer the questions truthfully. And the big difference between telling the whole truth and answering the questions truthfully, especially when you're dealing with a question that calls for a yes or no answer, you know why volunteer anything if you don't have to, but on the same token, you have to also. Now there's a lot more articles and stuff you can find on the subject, but back then there was no internet. So where are you going to get this information from? And you just learn the hard way what kind of tricky questions lawyers can come up with.
Speaker 3Long ago, long ago, I learned that as soon as they say well, mr Fisher, when you testified earlier, I know right then, and there, number one, they're going to misstate the question Number two, they're probably going to misstate the question number two, they're probably going to misstate the answer, you know, and I'll make them go back. I'll say I said I think you've misstated it and I'd like the court reporter to go back and invariably, invariably, they'll withdraw the question and uh, or questions that are so broad that there you really can't answer yes or no. It can't because because then they'll come up with the exceptions later at trial. And you know, trying to cross exam, oh, mr fisher, did you say this, did you say that? And?
Speaker 3And so you learn, you know how to deal with those, or never say anything absolute. Well, do you always do that, mr fisher? Yes, and then all of a sudden you just open yourself up to the exceptions. Right, so you learn the proper way of dealing again with those kinds of questions and how to answer them and still meet the obligation you have to tell the whole truth, and so I love that in the sense that you know it didn't take long to figure out. Here are the tricky questions and here's how you deal with them on to figure out.
Speaker 2Here are the tricky questions and here's how you deal with them. So you get an initial phone call and you know that you only like to take cases or you only will take cases that you quote unquote agree with. How do you find that out? How do you figure that out during the initial phone call?
Journey into Expert Witnessing
Speaker 3I'm a trained investigator, I know how to answer, ask questions. Well, it depends on what the nature of the case is, for instance. And then I'll start asking pointed questions based on, you know, my knowledge. And if I don't have the knowledge, why am I even considering it right? Sure? So you know I do a lot of insurance agent and broker professional liability cases. I do a fair amount of real estate emo cases because I understand that industry. I'll even handle a variety of other oddball stuff, but only if I feel I have the expertise.
Speaker 3I'll even handle some attorney malpractice cases if it's an obvious situation. For instance, he blew the statute of limitations. Well, that's a no brainer. Now the question is were there any damages to place? Just because he made a mistake doesn't mean there was any resultant damages. But uh, and so I've handled some attorney malpractice cases.
Speaker 3Would I be um knowledgeable or do I think I'd be competent to be an expert where they're doing merger and acquisition kind of counseling? Probably not. Probably not, unless it was an issue again that I'm familiar with like very narrow. But you know. So I know where my limits are and, like I said, I don't need to try and charge somebody money and then screw it all up. Right, I don't need to do that.
Speaker 3But it really is a question of probing, and sometimes I'll come up with ideas the attorneys hadn't thought of and all of a sudden it's like, oh my God, that's a game changer. But that's why they're talking to me. Hopefully is that I know the industry better than they do and I have, you know, often come up with stuff that they hadn't considered Like oh, it's like wow, and the whole posture of the case changes. And then there's the obvious. You know, every time I get a phone call and say it has to do with an insurance agent or a broker, for instance, as soon as they tell me what it's about, I'm already on the internet looking up their license with the Department of Insurance. And boy the things you find out there.
Speaker 2You know you've been at this long enough to have seen these changes, to have seen not just your field but expert witnessing in general, for your field, change throughout the past. You know you've been doing this. You said your first engagement was sometime in the 80s. So how has technology changed?
Speaker 3expert witnessing for you, well number one from from the standpoint of research. Having the internet available has made things enormously easy and there are so many organizations now that are publishing articles. You know attorneys that like publishing, you know a review of a particular appellate decision, and you know certainly some of the law firms I already know and they have their own websites and you can subscribe to their newsletters. But there are so many other law firms out there you've never heard of or I've never heard of, and those are picked up by aggregating organizations such as JD, supra or Lexology, and another one is Mondack. But I subscribe to all three of them and so every day I get a feed of, maybe on a list of 25 or 30 different appellate decisions. Three might spark my interest because they're in the areas I'm interested in, or sometimes none. But boy, the stuff I pick up on so fast. And you didn't have that ability back then. As a backstory to that, one of the things that my claim adjusting firm did was we. We subscribed to back before the internet. Of course we subscribed to what was called the advance sheets and what that was was like a paperback publication that came out about a month after the month closes and then in it was all the latest and greatest state appellate court decisions that were ordered published, as well as Supreme Court decisions that were ordered published, and so you could scan through it quickly and see which cases were of interest by topic, and that helped us in two areas. If it was a coverage decision, then that would help us in the way we analyzed a particular policy that you know was the one in issue in that case, for instance. And if it was a liability issue involving you know again the types of claims we were handling, then we knew how liability had been increased or decreased or what have you. And so, between the two, getting information on cases involving coverage or liability also gave us ability to enhance the questions that we would be asking during our investigation, and that was a valuable lesson. And, in addition, I think there was a law firm that used to publish a monthly column in the Insurance Week magazine where they published a monthly column on either liability for that would be of interest to insurance brokers or coverage, and so that was another reinforcement of that. And so, with the internet, when I came along, you know I think we were still doing claims, and so that helped us a lot.
Speaker 3And then, as I made the transition into becoming you know a lot, and then as I made the transition into becoming an insurance producer on a wholesale and GA level again, coverage decisions were certainly ones we were interested in, but so, as well as liability, how is the liability changing now, and is there insurance policies that will even cover that? So it gave us that leg up the old saying knowledge is power. Well, there's a good example of it, and so even now I'm religious about looking at these feeds. And you know there's another law firm, a very prominent law firm, used to put out a monthly magazine, an e-magazine, you know, not a hard copy, but a monthly magazine on the latest and greatest cases and on specialty lines. The partner who was in charge of it was somebody I personally knew and he was extolling the use of absolute exclusions, and I've been on a war path about those since 2009.
Speaker 3I've probably written five articles on the dangers of absolute exclusions, including a big one that the International Risk Management Institute published in, I guess, 2020, 2021, something like that, and we looked at it was a review of 30 decisions involving the enforcement of absolute exclusions and how broadly they're being interpreted and how bad these cases are getting of absolute exclusions and how broadly they're being interpreted and how bad these cases are getting. And you know whatever happened to the reasonable expectation of the insured? Out the window, the language is clear and unambiguous. What happened to the concept of contracts of adhesion and unequal bargaining position? Out the window, the language is clear and unambiguous. I mean, we've migrated from what insurance is all about and how things should be interpreted to this fanatical concept that if the contract is clear and unambiguous it will be enforced. What happened to that? You know? Or the old adage that you know, ensuring agreements are going to be broadly interpreted and exclusions narrowly construed. Well, again you got a Ninth Circuit judge saying, and I quote we are about to enforce a staggeringly broad exclusion Staggeringly broad. So all these old insurance maxims are dying.
Speaker 3I actually wrote an article on that called litigation is Good right and I talk about how all these maxims are out the window, and it was published by the Professional Liability Defense Federation. This is an organization of defense lawyers and I'm a member of the organization. At one time I was originally vice chair and then co-chair of the Insurance Agent and Broker Committee. And just remember, when these cases come down, you know the brokers are going to get sued. They're going to get sued for malpractice. Whether they can be sustainable or not is another question, but still they're going to get sued. So they're being thrown under the bus daily and I have to hand it to the PLDF for publishing that article because it was against the grain. You know when? When you write something.
Evolution of Expert Research & Technology
Speaker 2When you write something that's against the grain, do you ever worry, won't worry about? Do you ever end up on the opposite side of a matter with somebody who wrote the opposing article and and have to confront them on the details of of these sorts of things?
Speaker 3no, I haven't had that happen, but I will say that again to the credit. On the details of these sorts of things. No, I haven't had that happen, but I will say that again to the credit of the PLDF. I was writing an article because one of the contentious things, especially on the insurance agent and broker committee, was do wholesalers have a duty to anybody? Well, of course they do, but they like to have you believe we're just just a conduit, right, which is rubbish, especially when you look at some of the advertising wholesalers do on the internet, right, what are you talking about?
Speaker 3They don't say we're being a conduit here, but I've had a running disagreement with a particular person of that association on this topic. So they asked me to write an article. I said, well, I'm going to talk about the liability of old sailors. And then I invited the other fellow to do counterpoint article. It had never been done before, you know, for the for the pldf journal, and the editor was all for it. He's, that's a great idea, sure that's exciting to read oh yeah, and so he did.
Speaker 3And later on he complimented you. I can't believe you did that. I said why not? Just because we have a difference of opinion? You know what? So what? Let people decide for themselves who they think has better purpose. But you know, you have to understand we have forgotten what insurance is all about. Insurance is supposed to put you back in the position you're in before the loss, right, make you whole, and it's supposed to be a pool of of people in in the same situation and they pay money into the pool and hopefully there's enough money there to pay whatever claims happen and everybody's happy. And yeah, yeah, I didn't have any claims by helping you get back to on your feet. But you know what, if I have a claim, then you guys are paying for me to get on my feet, so it kind of works out.
Speaker 2Hopefully I won't have to, but you know, at least I know it's there. How do you get ready for something that's going to be a huge action? You know there's going to be contentious cross-examinations and probably 10-step positions all of that. What do you do to get centered and ready and prepared to perform in court?
Speaker 3It wasn't that difficult. I knew what the issues were. It was quite simple. Obviously, the court's never going to let me interpret coverage Right, but all I had to do was this is what was done, and it was solid in my opinion. I was very well prepared. Facts spoke for themselves. You know I'd done my homework and no matter what they threw at me, so you know and I'll tell you what happened at the trial, this is a star.
Speaker 3One of the things they wanted to try, and one of their tactics, was to try and put together the position that the quote definition of command is ambiguous, right, and I had written an article. I've written many articles on the dangers of claims made. I've written so many articles on claims made forms and one of them probably showed up maybe 10 or 15, you know different definitions. So this law firm wants to try and claim that the definition of claim is ambiguous, right, so they pulled the article, but they just pulled out the definitions. So he puts a definition up there and he says does this look familiar to you? He says, yeah, where's the rest of the article? Counselor, by the third time he put up a different definition. I'm saying what is it about this article you don't want the jury to see. Why don't you put the entire article up?
Speaker 2So you, as an expert witness, argued a little bit with the attorney, rather than letting yours.
Speaker 3The judge was letting me get away with it too.
Speaker 2Wow, I was going to say that's not something that experts are coached to do very often.
Speaker 3I wasn't coached.
Speaker 3But the judge was sitting there and not saying anything. So, okay, I want to run with it. Well, but my answer ultimately was the same Counselor, there's no question that different definitions, you know, can create some issues. But at the end of the day, this case has to do with making a disclosure of either a claim you know about or making a disclosure of a potential claim. And the solution doesn't matter what the definition is. The solution is report all claims and all potential claims immediately and, when you're applying for coverage, disclose them as well. That's the solution. Solution, it doesn't matter what the definition is. So he keeps another. Another definition comes up on screen, right? Same answer.
Speaker 3Finally, we're getting up to number nine or number 10 and I'm counting. I said are you gonna go for a dozen? Me now? Now the jury's starting to laugh and are you gonna go for a dozen? Now the jury's starting to laugh and are you going to go for a dozen? I said look, you've just proven my point.
Speaker 3As complicated as all this can be, the solution isn't Report all claims and report and disclose all claims and potential claims, report them as well and problem solved, right. So then he gets to 12 and I say are you going to go for a day? He goes no, now the problem is solved, right. So then he gets to 12 and I say are you going to go for a day, cause doesn't know. Now the jury is laughing their heads off, right, and I actually. But when we got up to number 14, I toyed with the idea of turning to the jury and saying you want to help me with the answer as a chorus. I really thought about that and decided let's not push the judge. And finally he intervened and says all right, counselor, I've heard enough too. This is going nowhere, move on.
Speaker 2I've heard from other expert witnesses that once you get a chuckle out of the jury, it's essentially over.
Speaker 3You've won them over Well juries tend to like me for a lot of reasons.
The Changing Insurance Landscape
Speaker 3Um tell me about it well, number one, I don't come off like an expert. And then, well, I'm the expert here. Ladies and gentlemen, I know you're going to listen to everything I have to say, but no, no, no, uh, even during the initial voir dire, to talk about speeches and seminars, and you know articles and now books, and my attitude is look, it may sound impressive, but unless you're in the industry, you wouldn't necessarily know that. And number two, it's only of interest to people having trouble sleeping. You know, get my books and articles guaranteed to cure insomnia. Now, I'm making fun of myself, right? But the other thing that I've been told is that I have a unique ability of taking complicated concepts and explaining them in a way that people can understand without, most importantly, without appearing condescending. And I can give, I can do it by example. You know, okay, here's what this really means. And you give it an example they can, they can relate to and they like that, and I'm not talking down to them and actually being apologetic, and you know, and so I'm that way. But at the end of the day, when I know I'm right, I know I'm right and I won't back down.
Speaker 3I was in a case some years ago. There was 219 million on the table. Most of it had to do with change orders on a highway construction project. This poor jury had to listen to three months worth of change orders. Oh my god, I would have been brain dead after that. Right, what could be more boring than that, than maybe taxes right now? But uh for know, my portion of the case was very narrow and limited, but it was contentious and I stuck to my my guns. I knew I was right and the attorney at one point, you know, may ask me this question I counselor for them. I don't know how many times I have to say this. I never would have made that recommendation to my customer, you know, I just wouldn't, and it would never happen on my watch, not on my watch. I think I said that four or five times. You know they push that issue and this was early in the case. This was in month number one, and so two months ago by, I finally got a phone call from the attorney.
Speaker 3Well, we got a verdict, you're not going to believe it. We won. So we and I said God what the jury had to say well, you're not going to believe this, but what are the things that really stuck in their minds with when you stood up to the ad attorney and said, not on my watch? They remembered that.
Speaker 2Do you typically follow cases after your part is done to see who won, who lost, how your performance was, what the jury said, those sorts of things? Yes, I do. Yeah.
Speaker 3I want to know what happened and I want to know whether I was of assistance, you know, for no other reason. Are they going to use me again? You know, and, yeah, I do. And most of the time the attorneys will call me after the verdict comes in, and of course, invariably as an expert, I'm usually especially if I'm on the defense side I'm the last, I'm the last guy to testify and so, yeah, usually. But I do want to know what happened and did I did and did I do anything wrong or screw anything up? And invariably I'm always told no, they loved you. You, you know, you did a great job. And then, of course, you know, they'll do the ultimate question would you use me again?
Speaker 2you know, yes is that how get? Is repeat business a lot of your work?
Speaker 3I wouldn't say a lot, but I do. I do have. I do have repeat business, especially on the defense side, although I'm getting some repeat business on the plaintiff side now too, just because I'm you know, they know I'm a game changer and I come up with stuff that nobody had thought of as a JD.
Speaker 2is it ever difficult to turn that off and not interpret the law?
Speaker 3No, it's not hard for me at all. I know where to draw the line. I thought I'm not here to interpret the law. All I know is this is what I'm supposed to do and this is the regs that tell me what I have to do and what not to do, and that's pretty clear and what not to do, and that's pretty clear. And then I stopped. And the same thing with questions of fact. You know I won't decide questions of fact. I will do an either or analysis.
Speaker 3And boy, I'll tell you, 100% of the time, one of the opposing experts, an attorney I love it, especially when I'm dealing with a state or federal court where I have to issue a rebuttal. They always cross the line and I'll open my rebuttal with you know a paragraph that basically says I didn't know if he was writing a brief or a thesis for a master's degree in law or what. But one thing I do know he was citing law which he's not supposed to do and he was advocating the facts when he's not supposed to do. And he was advocating the facts when he's not supposed to do and I said that's completely inappropriate as a role of an expert and I, 100 percent of the time the magistrates or the judges have agreed and gutted gutted 80 to 90 percent of their report. For that very reason, I don't need you citing cases, counselor, I don't need you advocating a position like it's, you know, closing argument, which is what they do, and I won't decide questions of fact.
Speaker 3And this came up on a in a case in nevada which follows, which follows the federal rules, and one of the key points of the case is no evidence of this, no evidence of that. And then this witness came up and uh, provided the declaration, provided the report, and he and he was a providing a precipitate witness kind of thing. And um, and he brought up a question, something that caused me to have to. In my rebuttal I had to say look, uh, now we have a fact here that's being alleged and I'm not going to decide a question of fact. So here's my review it either is or it isn't. However, when this event took place was after the loss, so in reality it's irrelevant anyways.
Effective Expert Testimony Strategies
Speaker 2Do you find that attorneys appreciate you kind of helping with that, with trial strategy, to some extent?
Speaker 3Well, I don't do trial strategy or case or what I call case plan. I might ask them about it and when they told me, well, we'd rather have you do it this way or say it that way, or we want to de-emphasize this and emphasize that my attitude is, if it does not affect my opinions, then I'm happy to do that because I don't want to interfere with their case plan. And even if I think I'm right, you really need to emphasize this. If they don't want to do it, I'm not going to argue with them because it still doesn't affect my opinion. But if they're smart, they'll listen to what I have to say and, um, and more often than not they do.
Speaker 3But you know, like I said, I mean, for instance, I've had some attorneys tell me we want you to write your report. You're free to tear this guy apart or no. We want you to take the high road, and that's fine with me, I don't care. But even when I tear him apart, I don't do it with strong adjectives. I want to stay away from that. You know I don't want to tick off a judge or anything, but on the same token it's like okay, here's where he's wrong. I don't need to editorialize it beyond that even though you might want to oh yeah, there's a certain amount of times I wanted to do that.
Speaker 2You're a published author. You you're a sought after speaker and a presenter and you've been doing this for a long time. You've written a lot of reports. Do you ever worry about keeping track in your head of every little thing that you've ever said on a subject, such that you know it might come up in a deposition, it might come up during cross and getting impeached on something that you said a very long time ago? How do you keep track of all of that? It's easy.
Speaker 3I'm a hundred percent consistent. You never changed your mind. I never changed my mind, with one exception. What's that? One exception? Jurisdictional differences, and can I make that clear? And that's why I love it when somebody wants to try and cross-examine me with my one of my articles. Good luck with that. You're gonna run, you're going to run into a buzzsaw, and that just happened. Uh, recently in the matter, a guy says does this sound familiar to you, mr Fisher? And I said, yes, it does. And I said the only thing missing from what you've just quoted me is where I was talking about how I agree with the standard of care. And then I and as a personal opinion, and I said I don't agree with it, but that was a personal opinion. Let's go to that portion of the article that you didn't bring up on screen, because if you don't want to do it now, we'll do it in trial.
Speaker 2Do you find that people take you out of context in that manner a lot? Is that a common strategy? No, they try. So that's something that expert witnesses should be aware of.
Speaker 3Well, yeah, you have to be careful. If you're going to write articles, if you're going to give speeches, you have to be careful what you say, because it couldn't come back to haunt you. There's no question about it. So if I'm doing a presentation, if I'm writing an article, depending on the context, I'll make it clear this is a jurisdictional question and that other states don't follow it or what have you and I get that. But I'm clear about that and what I'm doing, because I know that might be used and I don't worry about it because when that happens I know I can talk around it very easily and it's that and it's accurate. Why don't you put it on screen? Is there something you don't want the jury to see?
Speaker 2this is such a dynamic field, with all of these laws and rules and regulations changing and, of course, the jurisprudence then changes everything on top of that. How do you, how do you maintain, how do you stay current in your field in general? How are you constantly just you know reading all of the case law? Do you do, do you? You obviously are a professional speaker. Do you also attend seminars? What are the sorts of things that you do to stay abreast of everything? I do?
Speaker 3both I, I, you know. When I can, I'll I'll sign up for a seminar or webinar. In addition, I get all these feeds and their articles are written by law firms and sometimes they include the actual case and sometimes they don't. But if I really want to read the case, it's not hard to find. But I look at those articles and that tells me what I need to know, and then I store them. I must have gigabytes of articles broken down by category, with or without the actual appellate decision, and that's how I stay abreast. And then there's a lot of other. There's a lot of articles that other people are writing, like I do, and I read their stuff too, and that's how I stay on top of things. One thing I really really, really, really, really really like to see from lawyers get your goddamn experts lined up early in the case. I am so sick and tired of saying we have an urgent need and the report's due by the end of the month. Well, good luck with that.
Speaker 2You really think I'm sitting around here with nothing to do. I have a lot of experts who say that they charge one and a half or double for those rush jobs, but who say that they charge one and a half or double for those rush jobs.
Working with Attorneys & Case Preparation
Speaker 3But I'll give you a good example of why that's just physically. First of all, the downside to it. Number one is that I would say 80% of the time, by the time I get retained, discovery is already closed. And I'll be asking questions about stuff and they'll say, gee, we don't have that, or we didn't get that, or we don't know. I say, well, we don't have that, or we didn't get that, or we don't know. I say, well, discovery closed. Yes, well, we're not going to find out now. That's number one.
Speaker 2And number two, I may come up with stuff that, oh wow, changes the game and there's no time to change the strategy.
Speaker 3Yeah, it just can't be done. Or you got got 42 000 pages of documents to read through in two weeks to be able to do a report. You know that sort of thing, and so right. I'll give you a good example, though, of how this could really have a huge fiscal impact. I was hired very early in a case with an insurance broker malpractice case involving one of the largest insurance brokerages in the country, certainly in the top 10 and um, they just dropped the ball. I couldn't believe it when I was told what the case was about.
Speaker 3I mean, literally, the executive vice president walks into the office to talk to the president of this big construction company over their proposed construction of this office building going up high rise in downtown Los Angeles, and, of course, what immediately comes to mind is environmental high ability, right, and there's two kinds there's creating pollution during the course of construction, and then there's disturbing unknown pollution that may already be there during the same thing. So you need both, and there's plenty of insurance companies that have the capacity to write that coverage, and I know who they are, but that's not what happened. They got the one that covered only any pollution you create. And so they're excavating it downtown LA and of course there's going to be PCBs down there. You just know it right. And that's exactly what they did, of course. So they got denied coverage.
Speaker 3So the guy calls me up and, like I said, I can't remember if the lawsuit had already been filed yet or not, but if it had, it was, you know, probably hadn't even gotten the answer yet. So we're really early in the case. So I'm asking all these questions and he's given me what little he knows and I said well, here's what we need to find out. But I can guarantee you here's the answers. Number one what insurance companies did they go to? Because here are the companies I know would have done automatically both. And if they didn't go to these insurance companies, the only reason I can think of is they can't get to them on their own, they can't do direct. For some reason they got to go through a wholesaler and they didn't want to share the commission. This guy's the executive vice president, right? I said so you're telling me that the executive vice president of a major corporation is going to walk in the door to handle my account.
Speaker 3Boy, am I impressed. Oh, thank you. Yeah, all right, but in reality that's not what this guy is. This guy is not a corporate officer, although he has this big fancy title. So these are all questions to find out and discover right. And and then we got to the thing about the insurance companies, of course. Who did they? Who did they market to? And then were they dealing direct? And you know, on and on and the same, with the title of this, and that I mean just all these things. And during the course of maybe two years I would, or a year and a half, I'd get a phone call now and then and he'd let me know the latest information he's gotten and how it fits, what I exactly. As I told him.
Maintaining Expertise & Expert Boundaries
Speaker 3Then it turned out this guy I was right about his title, and then it turned out he wasn't even the expert on environmental. And I said, really, who is? And this is some person in. Uh, another question I suggest to find out who the expert is on environmental. And well, it turns out it's a guy in Chicago, but internally they don't allow the sharing of commissions. This guy was the producer, he was the one that brought in the account. He gets all the commission and so you think the guy in Chicago is going to help him at all? Not a chance. So when I heard that now we're late in the case, we're getting later in the case, we're getting close to discovery, maybe getting closed, right, and of course, if discovery had already been closed and he didn't have any of these answers, we'd be DED.
Speaker 3But okay, so he calls me up and he tells me the latest and greatest about who the real expert was and why he wasn't utilized, and I started chuckling. I said do you realize what's going on here and why he wasn't utilized? And I started chuckling. I said do you realize what's going on here? Because in my mind, they're willing to screw their policyholder to maximize their own revenue internally and they don't care. I think you've got grounds to seek leave, to amend your complaint, to request punitive damages. And I told them why and they say okay, god, this is great, is great, thank you. So maybe a month or two goes by.
Speaker 3Calls, you know. It says Fred, what are you doing for lunch today? I said, uh, well, I may be having it with you. What happened since we settled the case, really? I said. And then he says well, I can't tell you what it was, but my client's very happy. I said, wow, that's fantastic. And I said and then he says, well, I can't tell you what it was, but my client's very happy. And I said, wow, that's fantastic.
Speaker 3And I said, well, let me see how much time I have on this file. And it turned out I had $3,200 worth of time on it, just all phone calls. I hadn't reviewed anything and I said, if we have lunch I'll bring you your refund, because you know I had an evergreen retainer of $3,500 and I only could use $3,200 of it. So I brought up a check for $300. And I'm thinking. And then at lunch I said I got to compliment you, counselor, if I had to read 16 depositions and all the other discovery material, my bill before trial probably would have been about $35,000. And here I am giving you a $300 reason.
Speaker 2When cases go to settlement, does it have enough of a negative financial impact that you're like I wish so many cases didn't settle. Or is it something that's just the way that it goes these days?
Speaker 3If my deposition's been taken, I don't get upset. Okay, that means I had to put in a lot of time reviewing stuff and being prepared for my deposition. If it has, before my deposition is taken, I remind the counsel I said don't you realize that this year is be kind to your expert year? You're not supposed to be settling cases until I've, you know, made a little money on this. But in reality I'd rather see the case settle. I always say congratulations, the best files. And if I gave them good advice and gave them a lot of good information that they could use which I do do I mean it can be a game changer. And so, even though my deposition hasn't been taken yet, I still do a fair amount of research on it, and a good example of that is another case that was settled.
Speaker 3But it was a situation that was ridiculous. They were acting like oh yeah, this insurance was readily available, blah, blah, blah, blah, blah. So I went onto the California search system and downloaded a whole bunch and he actually the opposing expert actually did a declaration or maybe it was also in his deposition and he listed out all the different companies that wrote this class of insurance. But he didn't look at the policies. He just rattled them off. Well, I downloaded them. What he's saying isn't true. Every single one of them he got shot down on. So you know that one settled fine, but I got my research time into it, but to me it's not to me.
Speaker 2I don't need. I don't need the money. I need a reason to get up in the morning Before we wrap up. Do you have any last advice for expert witnesses or attorneys working with expert witnesses?
Speaker 3Well, sure For expert witnesses. Don't take cases you don't agree with. Don't take cases where you're on the, on the, on the edge of am I even capable of handling it? And then you can never go wrong. As far as attorneys, ah, for gosh sakes, be in contact with your experts, keep them up to date and, most importantly, get them on board early. They could save a lot of money. But waiting until the last minute means discovery is closed, and if you didn't get something during discovery because you didn't even know it was it could matter, you're toast. It ain't that expensive to hire an expert and just have a few phone calls up until it gets heated, so to speak.
Speaker 3It really doesn't, and a good example of that is $3,200 versus $35,000.
Speaker 2Sage advice, mr Fisher, thank you so much for joining me here today and thank you, as always, to our listeners for joining me for another edition of engaging experts cheers thank you.