Hiring an Expert Witness: Maximize Your Value!

Insurance attorneys are busy people! No two cases are the same! No secrets here. As an insurance expert witness I find this particularly true of the insurance trial attorneys who engage our services. You face a daily barrage of meetings, client phone calls, scheduling depositions and courthouse deadlines. The ideas offered below should help you “maximize value” for the fees you pay for expert witness services.

Expert reports:

On occasion attorneys call needing an expert report or opinion letters within 5-7 days. I have been asked to review 5-600 pages of documents, do peripheral research, join conference calls with the attorney, client and other parties involved and produce my expert report post haste. While we have generated a few of these short-fuse expert reports, your expert simply cannot give you their best work product trying to complete a 30-40 hour project in 12-15 hours. Engaging your expert too late in the game may also result in a mismatched expert and weaken your case.

Reasonable lead time allows us to ask you better questions, better data analysis, seek additional information and thus provide you better advice & expert reports. No different than when you prepare a case for mediation or trial. Attorneys know how much proper preparation improves your case presentation to the mediator, arbitrator, jury, or judge. Inadequate preparation usually results in a much weaker presentation and impairs your odds of prevailing. We understand attorneys live and die by turnaround time. We are simply suggesting that giving your expert adequate time should reduce your expert cost and increase the impact your properly prepared expert can bring to the cases.

Case study:

An attorney called me one Monday morning facing Federal expert designation and expert report filing deadlines on Friday. Her expert witness had withdrawn from the engagement late the previous Friday. Case facts involved a large explosion and fire, 2 death claims, 10 destroyed homes and multiple carriers with numerous insurance subrogation claims. I received her documents Tuesday morning.

She was defending an insurance agent against errors & omissions allegations. I could entirely dedicate the next 3 ½ days to her report only because I had just finished 2 other cases. The expert report was e-filed perhaps 90 minutes before the deadline. While I produced the best opinion letter I could, time constraints precluded a superior level of in depth analysis, documentation or suggestions to her. Given the complexity of this litigation, with adequate time I would have confirmed several of my assumptions, provided deeper analysis, and possibly suggested questions for deposition and/or further discovery.

Preparing for deposition:

We receive attorney inquiries regarding our services after initial depositions, long after all depositions have been taken, discovery is closed and a court date is imminent. Nearly always your expert must read such depositions to prepare any court-credible expert report or opinion letter.

We usually can provide you the best value as your “consulting expert” long before depositions begin. We are not attorneys providing legal advice. We do not practice law. We do not represent clients as their legal counsel. However, we can provide depth of technical knowledge in many areas of insurance expertise. We can assist you with technical insurance deposition questions to improve the quality of your deposition questions and courtroom arguments. Conversely, we may be able to suggest coverage or claim areas to avoid depending on the insurance issues in question. Our greatest value (before any depositions are taken) may be serving as your sounding board for issues of insurance industry standard of care, insurance agency custom & practice and very likely have seen cases very similar to yours.

I have read numerous depositions where the questions being asked focused on insurance coverage having little or no bearing on the case at hand. In nearly all these cases a 15-30 minute discussion with us beforehand could have helped the attorney focus their effort. Given an early snapshot of case facts, basic case documents and just a bit of review time your expert should be able to improve the focus of deposition questions and strengthen your case. Focused to address the most applicable coverage areas and avoid those areas not helpful to your client’s case. If we simply confirm your arguments are on track that adds value bolstering confidence as you correspond with opposing counsel or prepare for deposition.

We filter through technical insurance issues, thus freeing you to focus on case legal aspects and questioning strategy during deposition or trial preparation. By pinpointing insurance issues most pertinent to your case we may help refine your case strategy or tactics. You should benefit from our:

➢ Analysis of the nuances of various coverage
➢ Exploring other insurance coverages which may be available
➢ Observations of insurance agency “custom & practice “
➢ Interpretation of “standards of care” during the claims process
➢ Comparison of Claims-made vs. Occurrence forms

Case Study: An attorney retained me to analyze a motor trucker cargo claim. His client had hired a specialty trucking company to deliver a $1,000,000 machine some 275 miles from the Port of Houston to north Texas. Even using a low-boy trailer the machine was high clearance requiring bridge detours and special routing. The shipment proceeded without incident until the trucker hit a bridge less than ½ mile from his client’s facility resulting in a total loss. Case analysis revealed multiple purchase orders, multiple bills of lading, at least 5 potential insurance carriers, a flurry of emails and letters, questionable FOB address and sheer mayhem regarding who was legally responsible. Since the case was early in discovery my billable time totaled 7 hours. The attorney later told me our research and discussions had focused his efforts on who best to pursue for settlement. He later told me my suggestions to defer or avoid pursuit of those entities least likely to be responsible saved him countless hours and days of wasted time. Attorneys add value for their clients by understanding nuances of our legal system. Your expert witness can add value through their experience with the nuances of insurance.

Who pays the freight?

You know the general arrangements to fund legal fees and costs. Plaintiff attorneys commonly front all costs and may be repaid only if they prevail at the courthouse. Defense attorneys bill hourly fees and other legal costs (including expert fees) to the insurance carrier or insured.

I have received numerous calls from lawyers who have expended months of time and thousands of dollars on their “bulletproof” case. Most often they have not consulted with me or any other insurance expert. After an initial review of most files I can usually determine if evidence or facts favorable to the case can be developed. On the contrary I usually recognize early on when they have a weak case with little or no chance to prevail in court. That begs the questions: “How much money did they save by waiting so late to consult an industry expert?” “Could they have saved a great deal of money by seeking expert knowledge early in the process?” We know full well never to presume any final decision a mediator, arbitrator, jury or judge might make. However, we have very likely seen a case (or cases) similar to yours. A short telephone call early in the process might determine whether:


➢ Additional coverage might be available
➢ Your client simply does not have coverage
➢ Your client might have coverage under another policy
➢ An agent “did/did not” perform prudent service in analyzing client needs
➢ Whether the carrier is adjusting the claim within industry “standards of care”
➢ Opposing counsel may be confused on the “insurance coverage” facts


Case Study:

I was retained by a client whose agent had done a pathetic job of serving his insurance needs for several years. Agent negligence involved coverage structure, market placement and overall inferior service to the client. This client’s attorney was concerned about quantifying monetary damages resulting from the agent’s incompetence.

It took little time to see a multi-year pattern of apathy and neglect by the agent (and agency) regarding this insured. After reconstructing 4 years of insurance history we were able to substantiate the agent’s incompetence had damaged the client in the range of $325,000 to $435,000.

Before establishing my expert witness practice I was as an insurance agent for 30+ years. My background as an agent allowed me to establish very early that even a bit of attention or concern would have significantly improved this client’s insurance program during the previous 4 years. The attorney revised and bolstered his mediation strategy because as an insurance expert I was able to identify several areas not previously considered.

The client was “paying the freight”, but because the attorney contacted me early in the process I was able to add “expert” value to the engagement. As always, the end goal was to improve their odds at mediation and/or in the courthouse.

We always appreciate being considered as an expert for one of your cases. We hope the ideas above can help you streamline locating, engaging and obtaining “added value” for expert witness fees you pay.


Burl Daniel, CPCU, CIC, CRM


You can find my expert witness profile here at the X-Pro Expert Witness Directory.