Using Experts to Control Litigation Costs

[Editor’s note. In many types of cases, the litigation is almost entirely “expert driven.”  And using the right expert can sometimes help promote a prompt settlement (which saves on legal fees). My good friend, Kevin Quinley, an expert himself on insurance claims handling and coverage issues, provides some very important tips on using experts in litigated matters.]

Three Ways to Use Experts for Maximum Effectiveness

by Kevin M Quinley

“Expert – Someone who borrows your watch to tell you what time it is.”

However you define “expert,” it is beyond dispute that claim professionals spend considerable money on them: fire investigators, accident reconstruction specialists, physicians for independent medical exams, and metallurgists on product failure claims. Adjusters are often besieged by requests to authorize this or that guru, often at steep hourly rates.

Let’s look at three ways claim professionals can add value by astute litigation management of experts:

1. Get in the game. Get involved in the selection of experts. Do NOT delegate this to counsel. By all means, seek counsel’s input on recommended experts. An attorney’s ties to a community of experts is a plus. Experts are too expensive — and too vital to case defense — to be left solely to defense attorneys. That doesn’t mean, though, that you stifle defense counsel when it comes to making recommendations.

2. Get it in writing. Establish written authorization requirements. Require that the following information be provided before authorizing retention of any outside expert or consultant:
* the expert/consultant’s resume or curriculum vita (c.v.).
* the expert’s hourly rate
* the nature and scope of the retention, including, whether the expert is retained as a consultant or as a testifying authority.

Without this information, the adjuster or claim manager should bounce back to the defense attorney any authorization request. This information is essential as well in order to intelligently evaluate and reserve each case.

Of course, sometimes a particular witness is so effective and key to your case that you would gladly treat him like a pampered pasha and lodge him in the Taj Mahal if it means retaining his time, expertise and good will.

Pet peeve: some defense attorneys expect claims people to make financially significant decisions based on very scant information. I once worked at a company that had written guidelines that incorporated expert retention requirements. Yet, invariably, we still received umpteen urgent requests from defense counsel, needing authority to retain this expert or that. No discussion of hourly fees. No discussion about the scope of the expert’s assignment or range of hours needed to complete this task. This wastes time, money and betrays an inattentiveness on counsel’s part in reading our guidelines.

3. Look in-house before going “out-house.” In some cases, such as product liability defense, consider in-house experts. Don’t reinvent the wheel. There may be people inside the insured’s company who would make superb witnesses at trial. They are well credentialed and present well to a jury. Handicap number one is their perceived lack of objectivity, since they are employees of the defendant. Yet, one school of thought is that juries nowadays recognize the fact that everyone on the witness stand is “hired” in one sense or another.

With some forethought, claims people can upgrade this aspect of their litigation management skills by improving the process of retaining expert witnesses and making fully informed decisions that boost case defense and cost management.

Kevin M. Quinley, CPCU, AIC principal of Quinley Risk Associates and a member of CLM Advisors. He works with clients nationwide as an expert and consultant on claim-handling. You can reach him at (804) 796-1939, at kevin@kevinquinley.com or subscribe to his weekly blog, “The Claims Coach” at http://www.claimscoach.com

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One Response to Using Experts to Control Litigation Costs

  1. Excellent advice. No matter where I was in the decision tree, in-house or outside counsel or managing litigation, it was always important to make sure all were comfortable with the expert. Too expensive and too important to leave to chance.

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