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Expert witnesses still in demand despite downturn

Despite the recession, top expert witnesses still command top dollar.
But many are being brought in later in the pre-trial process, as attorneys and clients try to keep the lid on litigation costs.
A survey of testifying specialists and attorneys conducted earlier this year indicated that “lawyers are hiring later and more cautiously controlling [experts’] hours and [the work] they are doing,” said Steven Babitsky, whose firm, SEAK Inc., conducted the survey.
“Lawyers are being a little bit more cautious on the use of experts. Sometimes they’re holding off hiring the expert until later. That’s one way of holding down the fee,” noted Babitsky, whose Falmouth, Mass., firm trains testifying specialists and provides a nationwide expert witness directory for trial lawyers.
Gerri Colton, director of Technical & Medical Advisors, a San Francisco-based expert-locator firm, agreed: “Most firms are waiting much later to get their experts just to save money.”
“Retaining of experts and anything litigants consider anything but absolutely essential has gotten pushed later into the litigation cycle,” commented Richard Gabriel, president of Decision Analysis, a Los Angeles litigation consulting firm.
Some lawyers are also reducing the number of experts they use for a case, according to Gabriel.
“The clients I work with may save costs by cutting back on the number of experts and really tailoring their testimony to what the jury needs,” he said.
Colton said some cost-conscious law firms are “trying to find an expert who covers two fields of testimony, like an accident reconstructionist with an architectural background.”
But Shannon Kos, a defense lawyer with Collins, Einhorn, Farrell & Ulanoff in Southfield, Mich., said asking experts to “stretch their credentials” could trigger a Daubert motion.
“Say a plaintiff’s attorney hires an expert, and … asks that expert to cover more than just the expert’s general area of expertise,” Kos said. “I think that’s when experts can get into trouble. I’ve seen Daubert motions where experts are now trying to testify outside their area of expertise.”
‘Willing to spend the money’
One thing that hasn’t changed despite the tricky economy is experts’ fees, according to Babitsky.
SEAK’s survey of hundreds of experts and lawyers “indicates quite clearly that the experts are not lowering their fees,” he said.
And some experts report an increased demand for their services.
“We’re seeing more litigation,” particularly in business and family-law cases, said John Simek, vice president of Sensei Enterprises in Fairfax, Va., a computer forensics firm.
Babitsky said he’s not surprised: “The experts who do excellent work are still very busy. There is still a lot of competition amongst experts, but the use of experts, as far as we can see, has not gone down.”
Kenneth Kolpan, a solo personal-injury lawyer in Boston who specializes in brain-injury suits, said his use of experts is unaffected by the economy.
“I certainly haven’t cut back, because they are a necessary part of the case,” he said.
Rhonda Hill Wilson, head of a two-lawyer, personal-injury firm in Philadelphia, said she is bound by Pennsylvania law to use medical experts to establish causation in the nursing-home negligence and medical-malpractice suits she files.
“If we don’t use experts we get thrown out of court,” she said.
Regardless of statutory requirements, however, Wilson said she would be reluctant to skimp on expert costs.
“You have to be cautious about trying to save money,” she said. “If you take these kinds of cases you have to be willing to spend the money.”

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