There are several tips, that I either learned from experience or through the experience of others, that I find to be helpful in the expert witness side of my full-time consulting business. These are geared towards the toxicologist who does expert witness work here and there but also may be of interest to the more seasoned expert witness.
- Have a business associate agreement drafted by an attorney. This agreement should be signed before you start work on a case and will include things like your fee schedule (hourly rate, retainer, travel fees), HIPAA agreement, and a few pages of other important points so there are no surprises later.
- Bill the attorney at regular intervals and ask for a retainer up front. The size of the retainer is up to you. Don’t wait until the case wraps up. Send the attorney an invoice (which should include your EIN or Social Security number, who to make the check payable to, address to mail check, dates of service, and hours in increments detailed in your business associate agreement) along with a W-9. If you have a refundable retainer, return the unused portion, if any, along with the invoice. (Having a non-refundable versus a refundable retainer is up to you.)
- Stick with the science of the case and stay away from the legal aspects of the case. Lawyers know law. You know toxicology.
- Don’t be afraid to stand your ground on the science – even if it’s not what the attorney wants to hear. It protects your reputation, is the ethical path, and in the long-run, is the best thing all around.
- Remember that everything in writing is discoverable. Use email and texts for logistics and scheduling only. Discuss your opinions with the attorney over the phone. Ask the attorney if he wants a written report with your findings stated before you put pen to paper. In some states, the draft reports are discoverable; in others, they are not. This also means that you should not make notes on any records that you are sent. Find your own method of making notes while avoiding this practice (sticky notes is one suggestion).
- Protect and secure any medical records you are given. Put paper copies of records in a locked storage area. Make sure your mobile devices have password protection and encryption as well as your personal computer.
- Make sure you are clear on any deadlines. Stick to them.
- When the case is wrapped up, send back all records to the attorney, or shred them. Ask the attorney what his preference is (this also may be stated in your business associate agreement).
- Make it clear to the attorney what your limits of expertise are.
- How you developed your opinion (eg, your methodology) is just as important as the opinion itself.
- Be able to speak in terms the attorney and the jury can understand. Teach them!
- If you want to reach out to attorneys to let them know you are interested in providing toxicology consultations, provide them with value. Teach continuing legal education courses on topics of interest to them. Speak at legal conferences.
Submitted by: Allison A. Muller, Pharm.D, DABAT
Co-Chair, Forensic-Medical Legal Section