Academy of Chiropractic’s Lawyers PI Program 263
From the Desk of :
Mark Studin DC, FASBE (C), DAAPM, DAAMLP
"Testifying Fees: The Final Word"
Disclaimer: This consultation is not designed to tell you instruct you on how to set your fees. That is entirely your decision, however I am going to present the argument for one method. As always, you make the decision for your practice.
Consultation #198 says the following of which I am going to amend and clarify.
You must read this to the end...It just might be the most powerful motivator in getting referrals, while supporting the needs of your patients.
Last week at the mastermind meeting in New Jersey, I shared the lecture with the lead attorney from the firm that hosted the event who is one of the most successful personal injury lawyers in New Jersey and a champion of chiropractic. He has been personally responsible for chiropractic having the level of acceptance it does and our opinions being admitted into the courts as a result of his legal arguments and political positioning of the profession. It is for that reason alone, that I have chosen to volunteer my time to help his organization and help chiropractic concurrently.
One could argue that his motives are not pure and that he wants chiropractic because he makes money from us, but in reality that would be a poor argument because he could just as easily work with orthopedists and neurologists. The stark truth is that we as a profession, owe him and others like him a great deal of gratitude for furthering the chiropractic profession. He asked me to keep his name anonymous so that he could "talk turkey" and be frank with us in order to help guide us further in the medical-legal process.
He has heard me present many times and after I spent 1 1/2 hours talking and recording for you (please go to the audio consultations and reference New Jersey Mastermind 2-17-2011), he approached me during the bathroom break/lunch/coffee/BS break we had before he would speak and said, "I agree with everything you said except 1 item that you are leaving out of the big picture from the lawyer's perspective." That item was fees for testifying. My position is that I have been screwed by too many lawyers who have retained me as expert witness, who at the very last minute settled the case leaving me with a canceled day of patients and wasted days of preparing for trial. Many of those times, the lawyers didn't pay me up front and I was left having spent lots of time and had nothing to show for it. Therefore, I have adopted a policy of collecting my fee up front, 3 weeks in advance, regardless of whether the trial occurred or not. This way, my time is paid for and that is a very fair scenario that serious lawyers will work accept as business as usual.
The lawyer at the mastermind meeting said the following. "How many times does the average chiropractor testify, not in a year, but a decade? The answer is usually 4-5 times with exceptions, but that is the average. Even if the number was 30, how much money in a decade will that equate to and will it change your life? The answers are not a lot and no!" He went on to say, "To the lawyer, testifying fees are a big deal because although the client has to eventually pay for it, the lawyer usually fronts the money and it becomes a continual large expense for them. If the chiropractor is willing to let the lawyer know that he/she will work with the lawyer on the fees, charging $1500 and getting paid after the trial, then the lawyer would be much more willing to work with the chiropractor on more cases. Even in cases where the trial is lost, then the chiropractor should be willing to waive the fees as a sign of good faith towards the lawyer and work on future cases. This way, the lawyer knows that he/she will be getting an expert whose work is admissible and not have to worry about significantly increasing the expense per client."
I have been sitting with his words for a week now and at first I was a little hesitant, as my time has to be worth something because both you and I have been taken advantage of by most of the lawyers we have dealt with. This lawyer is under the impression that most lawyers, in general, will be fair and consider our interests, something that rarely happens nationally. HOWEVER, in the grand scheme, he is correct and if I actively practiced, I would give some of my time and "chalk it up" to goodwill in solidifying relationships with the legal community and follow his advice.
In understanding the lawyer's side, it's all about the amount of exposure and disbursements he/she is exposed to. If he/she wins, everyone is happy, but if he/she loses, then he/she too has to run after clients, no differently than we do, and that is not a fun place to be having laid out the money. As always, you have to decide the best path for your practice, but if you let the lawyers know your business policy surrounding your testimony and fees, that should go a very long way for the future of your relationships.
Last week, 1 year after I wrote the previous consultation, I once again lectured in New Jersey and shared the platform with the same lawyer on the very same topic; Fees for testifying. We bantered back and forth and he suggested the following:
Chiropractors are best positioned out of any professional to testify in soft tissue cases (discs, etc...) and the doctors in the Academy of Chiropractic's Lawyers PI Program are, in his vast experience for over 35 years litigating PI case, the best he has ever seen on a consistent basis. He stated that we are the most qualified and credentialed group of professionals to help any lawyer prevail on soft tissue injury cases.
The only problem in today's economy is the money to get cases to trial or use that as leverage to settle cases. He strongly suggested, for the reasons previously articulated that the DC should charge $0 to testify. First, on the witness stand, should you articulate that you get less than the average $5,000 - $10,000 to testify it will look as if you are desperate and connot command the fess that the "good exerts" do and will look second rate, thereby devaluing your role as an expert. However, most lawyers cannot afford to spend that for you in the types of cases we normally treat (we don't get brain injuries or dismemberments, etc...that command high recoveries in trial or settlement.)
If we charge $0, then we can accurately say that our purpose to testify is to "stand behind our patients to have the truth be on record." That is powerful statement in court and more so if you have the credentials behind you.
To have a fee and be willing to waive it is a contingency and can be viewed negatively in court, as if you are collusion with the lawyer.
With a $0 fee, the lawyer now can safely refer ALL of their cases to you understanding that very few will ever go to trial, but gives the lawyer a layer of insulation knowing that you can testify on causality, diagnosis, prognosis, MRI findings and other findings because you are qualified as an expert in all of these areas and they do not need to bring in any other experts. To clarify; your testimony can be admitted as evidence in all of the above so that the lawyer can present the various findings to the jury or use you as leverage in a settlement argument that they have the ability to bring an expert into court, no matter how small or large a case.
After the meeting last week, I put this to the test in Buffalo NY with Dr. Owens and after only a few days, the largest firms in the city reached out and contacted him that they were very excited and he should expect to see more referrals to his office. This was an immediate response!
Here is the e-mail that I crafted for him to send to the lawyers that he works with:
E-Mail Subject Line: Court Testimony URGENT UPDATE
Over the last few years, I have been working hard to support the needs of my patients and educating the legal community on a myriad of medical issues so that my patients and others can have the truth "rule the day" in testimony in any forum.
I have also made a committed to ensure that I have the requisite credentials and experience in order for my opinion to be accepted and survive a potential Daubert challenge. Amongst other things, I teach MRI Spine Interpretation nationally and locally at SUNY Buffalo School of Medicine and Biomedical Sciences, I teach medical residents who do a clinical rotation through my practice. To see my complete credentials, please go to:
ADD THE LINK TO THE US CHIROPRACTIC DIRECTORY CV
To further support my past, current and future patients, as a matter of business, I will no longer be charging fees for trial or deposition testimony as expert witness.
This is my commitment and I look forward to working more closely with you.