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What To Do if You’re Contacted by a Lawyer To Be an Expert Witness

  • 9 hours ago
  • 7 min read

We very often get posts on our online communities for doctors from physicians who have been contacted by a lawyer asking them if they’d consider being an expert witness for a malpractice case, either on the side of the defense or the plaintiff. This is actually how most people first dip into expert witness work. The good news is that all practicing physicians have the skill set to serve as expert witnesses - their experience is what is valuable. However, the logistics of doing expert witness work can feel like a steep learning curve at first. Below, we’ll cover what you should do when you’re first approached by a lawyer regarding an expert witness gig, questions to ask to ensure it’s a good fit and to establish a good working relationship, how to come across sounding professional on your first phone call so that you can command the best rates and terms, and how to approach the contract, fee structure, and retainer. 


Disclosure/Disclaimer: Our content is for generalized educational purposes.  While we try to ensure it is accurate and updated, we cannot guarantee it. We are not formal financial, legal, or tax professionals and do not provide individualized advice specific to your situation. You should consult these as appropriate and/or do your own due diligence before making decisions based on this page. To learn more, visit our disclaimers and disclosures.


What to do when a lawyer contacts you to ask you if you're interested in doing expert witness work


How do lawyers typically find physician expert witnesses?


There are many ways that lawyers can find expert witnesses, including referrals from other lawyers who can send them physicians that they’ve worked with in the past and had good experiences with, through expert witness directories like the ones that we offer through our side gigs matching services, academic or medical networks or professional organizations or societies, or the good old fashioned way - Google or online searches. This is where having a strong online presence can help you get gigs if you’re actively looking to get involved in this space.


PSG resources: 



What to do when a lawyer contacts you for expert witness work for the first time


When a lawyer finds you, they’ll typically reach out via email, although occasionally we hear about them reaching out via a phone call. They’ll likely introduce themselves, say that they have a case that they think you might be a good fit for. They’ll likely give you some high level details and then ask if you’re interested in serving as a medical expert witness, and if so, to set up a phone call.


At this stage, you have a few options:


  • If you’re not interested, decline (or don’t respond, but we’re believers in keeping doors open for future work)

  • Schedule a phone call to learn more

  • Do a little more due diligence first to see if you’re interested (learn a little more about the firm or the case)



The first phone call with the attorney to assess if it’s a good fit for an expert witness gig


Questions to ask on the introductory conversation


You’ll want to ask more details about the case itself to ensure that you’re comfortable with it, including:


  • What type of case is it? It may not be straightforward malpractice - they could also be contacting you for personal injury cases, workers compensation, disability, or even criminal cases

  • Are they representing the plaintiff or the defendant? While most physicians that routinely do expert witness work do both types of work, you may have a desire to start with one

  • Who is the physician and employer/hospital system involved, and who is the patient involved? Make sure there’s no conflict of interest

  • Who are the parties in terms of specialties, and what is the general allegation being made?

  • Why are they calling you and what do they want you to weigh in on?

  • What are the key dates you need to know about? Any deadlines or projected timeframes for depositions, testimonials, or other courtroom appearances?



Things not to do during the initial call


The first thing we recommend if this is your first time doing expert witness work is to not agree to anything during the initial conversation. Listen, process, ask questions, and say that you’ll get back to them. Many doctors in our communities express that they regret agreeing to a rate before doing their due diligence, or forgetting to ask about certain terms that they want.


Secondly, do not give an opinion during the first conversation. They’re going to want to know which way you’re leaning based on what they’ve told you, but it’s 1) important that they don’t use you for free to vet their case, and 2) that they can’t hold you to taking a side before you’ve had a chance to review all the details.



Decide for yourself whether you’re qualified to take the case


You’ll want to think about the following things:


  • Do you have the relevant expertise and experience to weigh in on this matter, and is it similar or greater than the physician whose care is being questioned?

  • Are you familiar enough with the condition/procedure/situation that’s being discussed that you’ll feel comfortable answering questions about both the standard of care as well as the nuances?

  • Would you be comfortable defending your qualifications to weigh in on this case under cross-examination?



What to do if you determine you’re interested in serving as an expert witness in the case


If there isn't an obvious conflict and you think you’d be a good expert witness, it’s time to talk logistics. You can ask the lawyer if they have a rate in mind, but don’t commit to anything. Tell them you will send them your fee schedule and contract after you have a chance to think about it.


In the meantime, if the attorney offers to send you preliminary materials for review, let them know that you would expect compensation for the time to review these cases, and that any review of records or case materials will be billed at your standard consulting rate. Reviewing materials, even if preliminary, can often take an hour or two, so you should get paid for that time.



After you get off the first meeting or phone call with the attorney


Decide on your fee schedule


You’ll want to create a fee schedule that looks professional and that looks like you know what you’re doing. This will help you command a better rate. You’ll need different rates for different services, including for chart review, creating a report, testimony, deposition, travel time, rush work, and more. Know your worth and don’t short change your expertise!  We have several resources to help.


PSG resources:



Send your fee schedule to the attorney, along with a request for a retainer and an expert witness agreement


Don’t start work without a retainer. We’ve seen too many horror stories of physicians doing hours of work and being ghosted when it comes time to being paid. These are lawyers, so you don’t want to have to go against them to get paid. It’s customary to ask for a few hours worth of work to be paid upfront.


 You’ll also want to send them an agreement to protect yourself.



What your expert witness agreement should include


Things to include in your expert witness agreement

It’s important not to rely on word of mouth or an email exchange. You’ll want them to sign your specific agreement about working with you.



Terms of the retainer


Your agreement should cover the amount of the initial retainer and what it can be used for, whether it’s replenished once you’ve hit that number of hours, and whether it’s refundable if you don’t use all of the hours. It should also cover when invoices are issued and payment terms, and whether you’ll stop work if the retainer isn’t replenished (you should). This is all to protect you from spending many hours on a case and then even more time chasing payments, while still continuing to do work for them because the case is moving along.



Logistics of working together


The agreement should also cover the scope of what exactly you’re being hired to do, the fact that you are going to provide an independent opinion (i.e. you will come to your own conclusion after reviewing materials and you will be paid regardless of whether it’s the one that they want), all of your fees, how billing will be handled and how time will be calculated and recorded, any special terms for depositions, testimonials, or trials, what happens if the case is settled or there are last minute cancellations after you’ve already planned on the time off, and more.


We’ll cover this, and nuances, in more depth in a dedicated article about the expert witness contract. Sign up for our PSG newsletter to be notified when this is published.



Conclusion


While there’s a lot more to expert witness work, we hope that this will help get you started with how to approach the first contact with an attorney professionally and in a way that will set you up for success and protect you. Explore our other resources below for FAQs on expert witness work as you get involved on a deeper level!



Related resources for physicians exploring expert witness work


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