5/4/2018
What Makes a Successful Expert Witness?

What Makes a Successful Expert Witness?

We ask two of them to find out

By Eric Gilkey

CLM Magazine recently sat down with two CLM fellows who specialize in serving as expert witnesses in claims and litigation matters to discuss their experiences. Richmond, Virginia’s Kevin Quinley and Houston, Texas’ Kevin Hromas come from diverse backgrounds, but each has carved out a successful niche as a retained insurance expert in litigation across the U.S. They share their best stories and suggestions.

Gilkey: Let’s start with the basics. What is an “expert” and how did you become one?

Hromas: You have to realize and appreciate that you cannot self-appoint yourself as an expert. Courts across the country have clearly defined boundaries on what an expert can present and, generally, that falls into areas that assist the court in understanding complex issues. Your designation as an expert originates in the party that retains your services and is making the representation to the court as to your expertise—they are the ones who are calling you the expert. The fact that I earned my juris doctor certainly helps, although I am not a practicing attorney. A 20-year career in construction gives me a comprehensive knowledge base for property claims.

After Hurricane Ike in the Houston area in 2008, I was asked by a former law school classmate to assist her firm in reassessing damages in order to facilitate settlements in mediation. Word quickly spread about my abilities to other defense firms in the Houston-Beaumont area, and I began receiving calls about being a retained expert in property litigation. It has grown from that point to where I now receive cases all over the country, mostly through referrals and word-of-mouth. I also do a substantial amount of appraisal work all over the country, too.

Quinley: The joke is that an expert—like a consultant—is somebody who borrows your watch to tell you what time it is. Seriously, an expert is one who, by virtue of experience, education, training, or credentials, has deep subject matter knowledge in a particular industry, issue, or realm. Also, there is a big difference between an expert and expert witness. All expert witnesses are (presumably) experts, but not all experts are expert witnesses.

What are the qualities of an expert witness? Channeling Liam Neeson’s character in the movie Taken, “. . . what I do have are a very particular set of skills; skills I have acquired over a very long career. Skills that make me a nightmare for…” opposing parties in litigation. In his book Outliers, author Malcolm Gladwell popularizes the “10,000-hour rule.” Essentially, this holds that it takes an investment of 10,000 hours of deliberate practice to become an expert and exercise mastery in a certain realm. There are no shortcuts. The process, done right, takes years.

Effective expert witnesses combine deep domain knowledge, oral communication skill, writing fluency, analytical acumen, and the mental toughness to manage stress, tight deadlines, and the ability to think on their feet. Many highly qualified experts lack the temperament, taste, or tolerance for litigation’s often rough-and-tumble world. Better have a thick skin and emotional self-control at depositions or a trial’s cross-examination because very smart opposing attorneys prepare for weeks to make you look foolish or inconsistent.

I never planned to be an expert witness; it was a role that sought me out. I began getting unsolicited calls from law firms around the country to serve as a witness on bad-faith cases. Industry visibility from writing articles, books, and speaking at conferences put me on the radar of firms seeking someone to opine on claims professional standards of care. For a few years, I “moonlighted,” since I had demanding corporate jobs that consumed weekdays, which meant I declined a lot of business. My wife kept asking, “Why don’t you consider making it a full-time vocation?” I resisted. In 2011, after more than 30 years in the corporate realm, I got an entrepreneurial “itch,” took a deep breath, and left the corporate womb to launch a consulting practice to provide litigation support services on disputed insurance claims.

Gilkey: Do you only take cases from one side? Defense or plaintiff?

Hromas: While a large percentage of my work is defense-oriented, I do not limit myself to that side of litigation. My opinion is that the facts of the case speak for themselves, and my opinion of those facts won’t change simply because of who hired me. I believe that it opens experts up to assertions of bias if they only work one side of the bar. Personally, I love getting the question in a deposition about being a defense “hack” because I am able to point out that I accept cases from anyone who seeks my services. I was retained as an expert in a plaintiff’s case that saw a large recovery when the evidence found that the carrier failed to handle the claim properly. I have also testified in court for the defense and the jury found for the carrier on all counts.

Quinley: I unapologetically take (and decline) cases from both plaintiffs and defendants. My caseload is split about evenly between plaintiff and defendant work, though that varies from year to year. Having a caseload composition like this blunts predictable ploys by the opposing side, which tries to paint you as a puppet of either the insurance industry or bad-faith attorneys.

I am neither “pro-plaintiff” nor “pro insurer.” I am “pro” good-faith claims practices. To those whose feathers are ruffled by experts taking plaintiff work for policyholder cases, I say, “If an insurer follows sound, good-faith claims practices, then it has nothing to worry about from me. If an insurer deviates from sound, good-faith claims practices, then I’m not their problem.”

Gilkey: Can you both discuss your most interesting cases from your years of work?

Quinley: Two come to mind. In the first, a retired dentist was sued by about 300 former patients who discovered that they had unnecessary root canals and tooth extractions. Hundreds of lawsuits were filed against the dentist, whose medical malpractice carrier had a chance to settle all of the claims, globally, for the insurance policy’s limits. Instead, the insurer settled claims one-by-one. While they succeeded in settling about 90 percent of the claims, the remaining 30 or so claimants went to trial and won a $30 million judgment, exceeding the limits of the dentist’s policy. The dentist sued his medical malpractice carrier for bad faith for failing to settle within policy limits when it could and should have. I was retained on behalf of the policyholder. The case went to trial and resulted in a multimillion dollar verdict against the carrier.

In the second example, a homeowner who was sitting in his driveway sipping beer got annoyed by a “hot-rodder” who was repeatedly motoring up and down his street. During one drive-by, the homeowner threw a beer bottle at the car, hitting the driver in the head and causing serious injuries. The driver sued the homeowner for injuries, and the homeowner tendered the claim to his insurer, which contested coverage based on an “expected or intended” exclusion. The homeowner sued the insurer for bad-faith coverage denial. I was retained on the insurer’s behalf and testified for the insurer at trial. The carrier won a defense verdict before a Cook County jury in Illinois, no small feat in that venue.

Hromas: I don’t know if my example would be considered “most interesting” or not, but it was the only one that actually kept me up at night. It involved a murder, burning down the house, then suicide. Reading the police and coroner’s reports was disturbing, to say the least. Domestic violence is always a tough issue to be involved in.

I also was retained in multiple cases from the Yarnell, Arizona, wildfires. That was the one where the 10 firefighters were trapped and died. I couldn’t bring myself to visit the memorial site outside of town or go see the movie, Only the Brave, that came out in 2017. Too tough and tragic a situation.

Gilkey: What information would you offer to an attorney who contacts you about being retained in a case?

Quinley: I willingly and freely provide a copy of my CV and a brief sketch of my work experience, publishing/writing bona fides and insurance credentials. I disclose my availability, which may bear upon the case deadlines and trial dates. I outline my niche of expertise within the property and casualty claims realm. I answer questions about fees. Importantly, I make it clear that I don’t know what my opinion will be until I review the materials in the case and cannot guarantee that my opinion will support the client.

I also promise that, if I cannot help, I will call and give them the opportunity to find another expert. Typically, when an attorney calls, I’m more on “receive mode” than “send mode.” I want to learn as much about the case as possible to see if there’s a good fit between my background and a client’s needs. If not, I likely know of another expert who is a better fit for the case.

Hromas: First, I would tell them that they shouldn’t expect a lackey who will only espouse the company line. The facts of the case speak louder than I ever could. If I am an expert for the defense, then you might get a call with comments about areas that they should be concerned about. If I am a plaintiff’s expert, don’t expect me to say that insurance companies are the spawn of Satan and only out to screw people over.

Second, I would hope that they provide me enough time to properly consider and address all of the paperwork associated with the case. I’ve had calls come in on Monday where they needed a report by Friday. Not much sleep that week, and they paid dearly for the delay. I’ve also turned down cases for that kind of late notice.

Gilkey: What advice would you give to someone who is considering moving into the expert arena?

Hromas: Like I mentioned earlier, you can’t self-appoint yourself as an “expert.” Do the absolute best job you can in your present position and, who knows? It might get you noticed by the powers that be and you will get the call. Obtain information from other sources and join organizations like CLM, which can help you make contacts that are beneficial. Kevin and I are both officers in the American Association of Insurance Management Consultants and have reaped benefits from our contacts there, as well.

Quinley: Develop domain expertise within your subject niche. Build credentials within the insurance and claims field. Deepen your knowledge through regularly reading claims-related publications. Attend conferences and seminars, and seek speaking opportunities. Submit articles for publication in trade magazines and newsletters. Attend webinars and volunteer to present. Become a panelist. Keep current in your industry. Build a contacts database comprised of attorneys who do insurance coverage and bad-faith work. When you are ready and interested in becoming an expert witness, let your contacts know that you are available to provide this service. I’d recommend the book How to Market Your Expert Witness Practice: Evidence-Based Best Practices by Mangraviti and Babitsky, SEAK Inc. It’s not cheap, but if the book helps you get only one engagement, then the investment will have paid for itself many times over.



Eric Gilkey is executive editor of CLM Magazine, a publication of the Claims and Litigation Management (CLM) Alliance. He may be reached at 513-273-8025, eric.gilkey@TheCLM.org.

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