In this post, I’m going to share a few hard-learned lessons from my 30 years of doing sideline-level private consultations. This segment is about your relationship with clients. The care and feeding of clients is important because you want them to pay their invoices, you want them to return to you for new cases, and you want them to refer their colleagues to you.
1) What’s appropriate for one tier of practice may not be appropriate for a different tier.
The first concept I want to bring up is the fact that there are tiers of practice. Most of us know one or two FPs who are making in the high six figures or low seven figures from consulting. I recently was involved in a case where I was charging $450/hr for consultation and $2,500 per day for travel and testimony time. I was in trial for a little under three weeks. My total bill for everything was around $55,000. That was extraordinary for me. Most of my cases bring in $2,500 – $5,000 total. My client told me I was a bargain. My opposing expert was charging a $10,000 retainer, $6,000 per day attendance, and $750/hr for consultation. I know of one FP who charges $40,000 retainer for paying cases (though I hear he or she does a number of pro bono cases), and up to $1000 per hour in addition to getting thousands of dollars to speak at various events. On the other end, I know a guy who charges $250/hr flat rate, even for testimony.
These high dollar folk have a very different case mix than I do. They do many fewer criminal cases and instead do a lot of civil medical malpractice and wrongful death cases. I only do one or two civil cases a year, and many of my cases are indigent cases, which pay very low court-appointed rates. Tennessee indigent services has a court-appointed rate of half my normal rate. Another state has an indigent services rate that will pay my normal hourly rate, but is stunningly stingy on travel cases. The higher tier folk will sometimes only travel business or first class when they fly. I ask my clients to book economy, and I’ll pay for upgrades myself.
The thing about civil cases is that there are often millions and millions of dollars at stake. At those levels, a few thousand here or there is chump change. In contrast, indigent services criminal cases will sometimes balk on small charges and can be much more demanding when it comes to bookeeping (though I think that last has more to do with being a government bureaucracy than the money). It’s the same thing you see when people think about buying a house. If they are looking at a million dollar house, twenty grand one way or the other is nothing. But.. these same people will obsess about a jar of jam costing $5.20 instead of $4.95 at the grocery store. You see the same thing with people who live at different tiers of income. For someone making ten million bucks a year, paying a $1000 service fee for something is not worth thinking about. For someone living on $30,000 a year, a $100 cost can lead to sleepless nights.
When you are first starting out, you will be in the lowest tier, and a lot of the things the upper tier folk do are inappropriate since they are designed to keep out the riffraff. I’ve never worried about it, since doing this is a borderline hobby. But if you are ambitious, you need to think about how to move up tiers. I’ll discuss that in a later post, but the short answer is “mentors.”
In any case, this series is for lower tier folk.
2) Retainers and initial consultation fees — how hard do you want to make it for people to approach you?
First, decide how hard you want to make it for people to come to you. If you want to make it hard, there are two primary barriers: initial consultation fees and retainers for individual cases. In both cases, you demand some money up front. If you put those in place, fewer people will come to you. If you remove them, more people will come to you. Retainers and initial consultation fees are, in my opinion, a lot like those zillion dollar dues at exclusive country clubs. It’s not there because it costs a million bucks to pay for the complimentary finger food. It’s to keep people like me out. They can’t discriminate on the basis of sex, religion, race, or sexual orientation, but they sure can do it based on wealth.
Why would you want to discourage people from coming to you? You will want to do this if you are overwhelmed with cases and don’t like saying no in person or don’t want to bother with the background noise. In addition, if you are full up, you may want to filter your cases to select folk with deeper pockets, and it’s those deeper pockets people who won’t blink at an up-front fee. There’s nothing wrong with that. For instance, if you are a high-level consultant who charges $1000 per hour or something, and your schedule is full, then you don’t want to be bothered with public defenders bombarding you with indigent cases. If you charge $2000 just to pick up the phone, you won’t hear a peep from them.
Initial consultation fees are fees you charge just to be told about the case in order to determine whether or not you are the appropriate person to do it. Most sideline-level folk I know don’t charge initial consultation fees. I don’t. The primary reason is that I kinda want to hear about cases, and I’d hate to miss an interesting and entertaining case because the lawyer didn’t want to “waste” a few hundred bucks just to have a 15 minute conversation with me.
It also allows me to increase good will with potential clients. I’ve done this for three decades now, and there are very few cases I get at this point in my life that are not very similar to multiple cases I’ve done in the past. After you’ve done this for a few years, you start to realize that most cases are variations on relatively few themes. So, when a lawyer comes to me, within five minutes, I pretty much know how the conversation will go, and I know whether or not I want the case. More important, it means that I can often tell what the important questions are and provide some decent guidance just in the introductory call. Since I do these at no charge, repeat clients will often call me with general questions and I can help them with minimal effort. This keeps lines of communication open, and when a “real” case comes up, they will think of me first.
As you might expect, a lawyer who calls every week to go over cases like that is really looking for a free general consultation, and is abusing me. But such people, in my experience, are very rare. On the other hand, making it easy for people to call you up means they will do it on a whim, and they sometimes run by very interesting and fulfilling cases where you can provide them with pointers they didn’t even know they needed.
So, I don’t charge initial consultation fees. I like jawboning with these people.
A retainer, in the sense I’m using the term, is simply charging for some basic number of hours up front. There’s another definition of retainer in which you pay a periodic fee and you get some basic services whenever you want them. I don’t mean that. Some people, for instance, charge five or ten hours of time to be paid when they take the case. Charging a retainer without charging an initial consultation fee allows you to hear about the cases, but it ensures that you only take cases that will pay well, and that the lawyer will, in fact, pay you something. Most of the people I know who charge retainers have been burned in the past — they’ve done a case and the lawyer skips the fee. In most cases, it’s not worth litigating for those fees. Why pay $5000 in lawyer fees in order to get $1500 in billable hours?
The filter effect here is pretty clear. Most of the cases I do bring in less than $5000. Charging a $10,000 retainer would make sure I got none of them.
3) Be responsive
One thing clients hate is for people to not return phone calls and emails. This is a no-brainer, but you’d be surprised at how many people read a query from a client, set it aside and say “I’ll think about it and get back to them.” and then forget about it. Suddenly a month has passed.
I’ve gotten calls from clients in a panic because they initially consulted with someone else who basically became unresponsive for three or six months. Now there’s a trial in three weeks, they don’t have anything, and they are pulling their hair out. There’s no real excuse for that other than abduction by pirates or severe health issues.
If you get a call and can manage it, pick up the damn phone. If you took a message return the call that day or the next. If you get an email, respond immediately. You don’t have to have an answer their question right then. It’s enough to say “I got your email. I’ll respond tonight or tomorrow morning. If I haven’t, contact me again and ask me why.” I add that last sentence because sometimes I *do* forget about a call. Clients need to be able to feel like they can call on you to see where things are without feeling like they are being intrusive. Because forensic pathologists are so hard to get, many lawyers are afraid to push on their expert because they are afraid you’ll take your ball and go home. Smooth their feathers and make them feel good about talking to you.
I understand valuing your privacy, and nobody likes to get calls at 10 pm about trivial stuff. But still, I give my clients my cellphone number and accept texts from them. When I get a text, i respond as soon as I read it, again even if I don’t have a substantive response. One of my favorite clients is a night owl and so am I. It’s not uncommon for him to call me at nine or ten at night. If I’m busy, I’ll tell him. No big deal.
If you have to write a report or affidavit, give your client a deadline by which you’ll have it done, and make that deadline. A client who can rely on your responsiveness will be a repeat client.
4) Don’t be an asshole.
I’ve never had a client who tried to take advantage of me. I’ve had lots of clients who weren’t really sure of what they were doing. And this is true of the practicalities of the business just as it is about the medical issues of a case. They may not be all that good at arranging flights, getting hotels, whatever. They are usually doing the best they can, and if they are public defenders, are dealing with their own bureaucracy.
Some experts insist on first class flights, four star hotels, etc. Don’t do that unless you are in the highest tier of cases. Counsel is doing the best they can, and if you make unreasonable demands on them, they may get very frustrated trying to accommodate you. Remember that *they* are not travelling like that, and making some of these demands just seems arrogant.
Similarly, don’t act like you are doing them a favor. They are doing you a favor by paying you hundreds of dollars per hour for your work. I really can’t enumerate all the possible asshole things you can do, because it’s really the acting out of an attitude. Just don’t be one.
As King Solomon said a few millennia ago, “Everyone who is arrogant in heart is an abomination to the Lord; be assured, he will not go unpunished.” It’s easy to become arrogant. You are being hired because you know more than almost anybody else about your subject, but remember that there’s always someone who knows more — and those lawyers know a lot of stuff you don’t. I learned that lesson the hard way many years ago. Don’t be me.
It’s much better to be a little humble, and let others say things about you. As Solomon also wrote, “Let another praise you, and not your own mouth; a stranger, and not your own lips.”
5) Anticipate their needs
I’ve seen some pathologist be pretty passive when it comes to their cases. They will answer questions and write a report if asked, but that’s about it. That’s OK, but I’ve found most clients really like it if you are just a little proactive. You are not *just* there to answer a particular question. You are, in part, there to husband your clients — you are acting as coach, teacher, *and* performative expert. Focusing only on the last is a disservice to your client.
If a client has a depo scheduled with an opposing expert, offer to provide questions to ask. A lot of lawyers are fundamentally clueless about the pathology issues involved. They don’t know what they don’t know, so they don’t know what questions to ask an opposing expert. A lot of defense lawyers seem to assume the county or state Medical Examiner is working ex parte for the prosecution. I explain to them that’s not normally the case — the local ME is supposed to not take one side or the other, but be impartial. So, there should be no problem getting an interview with the ME. Often they don’t even need me to go to trial once they meet with the ME and ask the questions I give them.
The ME who did the autopsy *should* be quite open about discussing limitations of his or her opinion. An ME may give an estimated time of death, but may not spontaneously volunteer to opine about how crappy time of death determination is. On the other hand, if counsel thinks to *ask* specific questions about problems with time of death determination, the ME will likely be quite open about it when answering those questions. If you volunteer to provide questions to ask opposing experts and explain in detail why you are suggesting those questions, you will be teaching counsel stuff they will use for the rest of their career and you will make that deposition a thousand times more valuable for them.
Similarly, if you see a way that counsel can approach the questions in the case that they are not aware of, then be proactive in bringing those directions up in conversation. I recently had a case of a scalding of a child. The story was that the child was being washed in a tub shower. The parent claimed he or she was distracted by another child and turned his or her back. The injured child ran back to the front of the tub, hit the hot water knob and fell down. The child showed partial immersion injuries. The prosecution expert opined that it was abusive because even though immersion injuries can occur by accident, there were no splash or spray injuries, which would be necessary for a shower. I told counsel that the opposing expert was absolutely right about the fact that there were only immersion injuries, but it is not appropriate to make assumptions about the geometry or working of the shower. If the shower was not scalding but only became so after the infant went back to the front of the tub (and thus not in the path of the shower), then there need not be spray injuries. That, unfortunately, is not a pathology question, but a plumbing and forensic engineering question. I advised them to get someone else to look at the plumbing.
6) Do your due diligence
Sometimes when you have a case and the story seems obvious to you, yet counsel has provided you with ten thousand pages of medical records and ten hours of video interviews, it’s hard to spend those hours looking at stuff you don’t really need to see. But, in fact, you do need to see them. There *may* be a diamond in that pile of turds that will make the case. And doing that is in large part what counsel is paying you for. Similarly, you may think that you know the literature about a subject, but if you have a new case involving a subject, then take that opportunity to brush up on your command of the literature. I almost always find something new about a subject when I do that, and it’s often pertinent to the case. The bottom line is that counsel is happy to pay you a few hundred dollars an hour to sit down with a martini and do some self study. Enjoy it.
More important, if you say you’ve gone over those medical records, then make sure you have. If opposing counsel is good, you can be damn sure that he or she did, or hired someone to do it. You’ll look like a fool if you are up on the stand and in cross examination counsel pulls out fifteen or twenty nuggets that you didn’t see because you didn’t look. It’s one thing to look through the medical records and miss something. I do that more often than I’d like. But it’s inexcusable to say you’ve looked at records — medical, police, or whatever — when you really haven’t.
The famous forensic pathologist of the generation above me named Vincent DiMaio used to say that it’s excusable for a forensic pathologist to fail to notice something, but it’s inexcusable for a pathologist not to bother to look.
7) If you write a report, make it thorough and not just ipse dixit.
I have consistently been appalled by the quality of reports I’ve seen in cases I’ve worked on. Experts often write very bare-bone reports that provide their conclusions but provide no basis for it at all. Now, frankly, that’s what some lawyers want, and if that is what they want, feel free to give it to them. However, I take a completely different path. I do a thorough literature search for each case and I provide literature references for almost everything I say. If what I say is based on personal experience, I am explicit about that.
A solid report will make your deposition much easier in civil cases. In criminal cases, it provides a good foundation for a plea bargain if you are working defense. If you write a handwavy report, you will have to have a lot of stuff at your fingertips at depostion. My memory isn’t that good. When it’s in my report, all I have to do is say “As I noted in my report….” So far, clients have been very pleased by that. I’ll talk more about doing literature searches in a later post.
I know a fair number of experts that don’t do this. They lead with their chin, and count on the fact that they are experts to cover all sins. Oddly, that often works. But when it doesn’t, and when counsel is well-prepared (see point 3 above), they can look pretty silly.
8) If you don’t know something be up front about it.
A lot of folk think we FPs know everything, and a fair number of FPs are happy to let people think this. I’ve seen FPs opine about details of ballistics, engineering, and all sorts of things. A lot of time they are leading with their chin, as mentioned above, and hope that their mere sense of authority will carry them through. I exist to make sure that doesn’t happen.
If you don’t know something, or if it’s out of your area of expertise, speak up. Counsel will not be upset. They will be grateful, particularly if you can refer them to someone who does know. Keep a list of neuropathologists, toxicologists, forensic engineers, etc. that can help them. Or not. The bottom line, though, is that if you don’t know and counsel knows this, they can find a way to deal with it. If you fake it and collapse on the stand, they will never forgive you.
Similarly, if you make a mistake, be *fast* to own up to it. If it’s before trial, you can offer an amended report. it’s better not to make a mistake, but a mistake that’s caught in time can be remedied. Again, counsel will appreciate your honesty, and they can deal with the issues. They may not be able to do much if it comes up in cross examination.
9) Be upfront about the limitations of your conclusions
The generation above me had a habit of making a diagnosis, and then claiming that it was made with almost absolute certainty. That is almost never the case in reality, and it is very frustrating to respond to it. Remember that most of our diagnoses are in fact heuristics that have an error rate. Be open about it. The gulf between “this is the case 9 times out of 10” and “this must absolutely be the case” is a mile wide. I’ve seen this very often in cases that involve time of death determination. People take the body temperature nomogram or time to rigor and make absolute determinations of time of death. Then they get up on the stand and claim that they can state time of death precisely or rule out something based on the “impossibility” that the body cooled or that rigor disappeared or appeared. Yet when you look at the literature, that’s simply not the case. Know the limitations of your statements and be open to admitting it — and if possible, quantifying it. In child abuse cases, for instance, immersion scald wounds are more likely to be abusive than splash injuries. But there are plenty of accidental immersion injuries, and making the claim that an injury *must* be abusive *because* it is immersive, will put an innocent mother in jail for the rest of her life.
10) Be explicit about what contextual data your diagnosis relies on
This is big deal in the “cognitive bias” scam, but that doesn’t mean it’s not important in real life as well. Here’s the thing. If your diagnosis relies on contextual data and that contextual data can be attacked on the stand, then you are hosed. Know ahead of time how changes in context would change your diagnosis. Make sure your client knows about it so that there won’t be surprises on the stand. It’s not really a big deal if it’s dealt with before trial. It’s only a big deal if you are sitting on the stand looking like an idiot because you don’t know how to react.
11) If you have skeletons in your closet, note them up front
Not everyone has a spotless career. If you’ve made a mistake or have a blot on your reputation, be up front about it. Again, counsel can deal with it in pretrial hearings. Learn to state your side of the story clearly and without emotion. I’ll deal with this later, but never get angry on the stand. Never get defensive on the stand. Just move on. If you’ve read my “Open Letters to NAME‘ posts, you’ll know that I was cancelled by NAME. That has come up on the stand, but you just deal with it and move on. More important, however, make sure that there are no surprises on the stand for your client. I’ll deal with this more later.
12) This is a ministry, but don’t let an agenda overtake the truth
If you are a person of faith, then remember that your secular work is, in fact, a ministry. You are a servant, and your work is your way of doing God’s work. As Paul wrote, “Whatever you do, work at it with all your heart, as working for the Lord, not for human masters, since you know that you will receive an inheritance from the Lord as a reward. It is the Lord Christ you are serving.” You clients are acting as agents of God when they hire you. It is not wise to treat them with disrespect.
Pray about your cases. Listen to the Holy Spirit and let Him guide you as you approach a case. He can provide insights that you might not think of using only your rational mind.
We do good by doing good work. But there’s a catch, some folk try to do good by doing bad work. I see this often in cases where folk start with the assumption that the police are evil and that defendants are all innocent, and it’s happening more and more in cases involving deaths in custody. They are willing to sacrifice their integrity and the objectivity of their work in order to help get someone exonerated or to convict a cop. Conversely, I’ve seen it also in child death cases where some folk seem to take the position that *all* parents are innocent and are the victim of evil prosecutors.
Many years ago, while I was a Medical Examiner in another state, I did the autopsy on a child. I don’t even remember the diagnosis I made in the case, but it was abuse or negligence of some sort. The body arrived at the hospital many hours after death and a CBC was performed that revealed an astronomical white cell count. The reason that this happened was because the decedent had been dead long enough for the blood to settle, and the blood draw sampled the equivalent of the “buffy coat” — the layer of white cells in settled or centrifuged blood. There’s a decent lliterature on this. The opposing expert, however, claimed that the decedent died of leukemia. She was wrong, of course, but I didn’t care about that. What drove me crazy was that she wrote that I “overlooked” this diagnosis because I, as a wealthy physican and tool of the state, held poor people in the rural areas in contempt and didn’t think they deserved a good evaluation. It was a false, and agenda-driven, accusation. It was harmful and didn’t help her client. Don’t do that kind of thing.
It feels good to be a crusader. And there’s nothing wrong with crusades. But two wrongs really don’t make a right. Saying misleading things on the stand or making false assertions in a report or deposition will ultimately discredit your cause. We all believe in the rights of men and women. None of us like abuse or discrimination or other evils. But you don’t solve it by letting your advocacy lead you into evil. As Proverbs notes, “The Lord detests dishonest scales, but accurate weights find favor with him.” It doesn’t matter *why* the scales are dishonest. Dishonest scales in a good cause are still detestable. It is just as wrong to cut corners to help the poor as it is to help the rich. As it says in Leviticus, “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.” We do best when we serve the truth, not an agenda. Don’t let a lawyer lead you astray and into doing this, and don’t let your desire to advance an agenda blind you.
I love your biblical references. 🙏
Thanks. It’s unfortunate that our professional organizations insist that we hide our faith in our practice.