If you find yourself facing a lawsuit alleging malpractice, here’s what you need to look for when considering an expert witness.
Unfortunately, in the conduct of their business, design firms may face a lawsuit alleging malpractice and will need to obtain expert testimony as a key part of their defense. At that point, critical decisions must be made with a high degree of urgency.
Opinions on these matters tend to differ, so first and foremost discuss retention of experts with your lawyer early in the process. You’ll need to quickly come to a meeting of the minds about what types of experts might be needed and who might be appropriate.
Will a standard of care expert be sufficient, or will you need to consider other experts such as a damages expert or a scheduling expert as well? The answer depends on the claim being made. Early discussions give you a much better idea as to what a defense will cost before the money is spent and will help you make good decisions about the appropriate course of action.
There are business decisions, as well as emotional decisions, that need to be made when defending a malpractice claim. And you can only make the best choices when you have the full picture. Listen to your lawyers; they know what you need and why you need it. At the same time, however, recognize that you need to be part of the process of retaining experts. After all, your reputation is at stake in these matters.
During one mediation some years ago, the opposing party told the architect that the claim wasn’t personal, it was business. Yet, what could be more personal than accusing a professional of malpractice?
To that end, here are some thoughts on what makes a suitable expert:
- Seek those with relevant knowledge and experience. While this may be obvious, it’s important to find someone who has actual (and ideally extensive) experience in the type of project that is the subject of the dispute.
- Focus on integrity. Consider a competitor, who is active in the professional society and with whom you are friendly, but who is not a friend. This person could be someone whom you respect, who has a reputation for integrity, and is gifted at telling a story.
- Insist upon honesty. Find someone who will tell you the truth. It’s better to know the potential weaknesses in your case, which can help you and your attorney make informed decisions about how to proceed as the dispute continues.
- Double-check engagement level and availability. The expert will want to become fully versed in the story, both the good and the bad. They need to have the time to devote to the resolution, which may include attending select depositions and mediation.
- Gauge the expert’s power of persuasion. They also should believe in the position they’re taking and be able to convince people with no background in the profession that the position they are taking is the only position.
- Can they balance competing responsibilities? Recognize the challenge in finding experts with the necessary credentials is that design professionals are especially busy these days – and most would rather be working on their own projects than acting as an expert witness. Even so, among active professionals, serving as an expert should only be a small percentage of the expert’s practice.
- Do they embrace the duty to serve the profession? One reason it’s important for practicing professionals to become involved in these cases is that dedicated experts are the ones best equipped to help shape the laws that ultimately govern the profession.
- Retirees can be ideal witnesses. In recent years, demand for witnesses has spawned a cottage industry of “professional” experts, including active practitioners and retirees. Of the available pool of experts, retirees who have devoted their retirement to testifying on behalf of their former profession often may be the most suitable. They have the qualifications to provide an honest and valuable assessment of your situation.
- Insist on experts who are focused and disciplined. Avoid engaging individuals willing to opine on topics or issues outside their areas of expertise. Similarly, stay away from those who will tell you what they think you want to hear. These witnesses not only lack credibility but may be more inclined to “flip” at a critical moment in the case, undermining your position. So, you are much better off with individuals who will tell you the truth from the beginning.
No easy task: Defending against a professional expert. In all likelihood, the case against you will involve a professional expert. Their perspectives can be difficult to contest given their extensive experience taking a variety of positions.
Furthermore, many of these witnesses have no problem taking extreme positions and doing so with the appearance of great authority. A knowledgeable lawyer can illustrate who they are and what they do; however, these witnesses are experienced and can be effective, so they should not be discounted.
Although relatively few cases actually go to trial, it’s important to anticipate that a trial still is a possibility for the resolution of your case. While juries are made up of people who typically do their utmost to get to the truth, in selecting an expert you need someone who is both likeable and able to tell a compelling, believable story. If your lawyer, your expert, and the other witnesses involved all have these qualities, then your chance of prevailing increases dramatically.
Given the potential for litigation to set precedent and have an enduring impact on design professionals, every practitioner should be open to serving as an expert in the right case if they are approached by counsel to do so. While these types of engagements might take time away from the practice, which certainly needs to be their primary focus, they ultimately can help strengthen the profession.
Indeed, serving as an expert can be time-consuming and even stressful. Yet, the experience of assisting from the sidelines can give design professionals invaluable insights into risk management and the legal process. This knowledge, in turn, can help them greatly improve their own practice while also protecting and supporting the greater design community.
Lauren Martin is a risk manager and claims specialist at Ames & Gough. She can be reached at lmartin@amesgough.com.