Turning Experts into Game Changers: Strategies for Injury Litigators

Speaker4: And just for context to what I’m going to try to do is because I do have all of the hats of both Doctor Walston and Doctor Bourgeois, I’ll kind of note and say, okay, you know, putting my economist hat on, you know, and talk about it as opposed. So that way you guys just don’t conflate you know, the different roles because obviously they’re all distinct. But that clarity is important.

Dan Wolstein: Okay. Great. All right.

Paul Bourgeois: Yeah. Yeah, exactly. And I think one of the more important points here, and you all know this, right? Experts do a lot more than just provide opinions. And while we all love to talk in our roles we really feel like our job is to kind of validate that story that I was talking about a little bit earlier. So, you know, what do experts do in general? We help to organize the data, right? We know in our roles there’s a a wide variety of documentation, reports, etc., and it’s our job as experts to help you organize that data, identify what’s missing. So that ultimately your gate case is grounded and objective reality. Right? Sometimes it can be difficult when you’re working a complex case. There’s a lot of variables in there. And, you know, one of the things that we really enjoy doing in our role as experts is, you know, educating counsel in these areas. You know, how do we conceptualize this case, what info do we need? Again, what’s missing? And of course, and as we’ll talk about also to help protect against some defense narratives that you know, may rely on speculation or gaps, etc.. So we’ll talk today about, you know, how experts in general handle those ideas. And we’ll get into the nitty gritty specifics about the different types of experts and that chain of opinion that Dan was describing earlier.

Dan Wolstein: And I would also add that we like we also like to point out when the other side doesn’t have a cohesive type of presentation, right? So we’re hired. What happens when the experts on the other side, you have an economist who does a total loss report and a vocational expert who says, you know a diminution in loss of earning capacity, you know, pre versus post injury. So we, you know, we’re here to hold a discussion and talk about I think the, the way that the right way to do things and then pointing out other experts when they don’t do go by, you know, the best practices.

Speaker4: So just to add into that too like a good example for economists is they can’t make vocation. There’s very few people that can make a both a vocational opinion and an economic opinion within reasonable professional certainty. A lot of economists do make that leap to provide a vocational opinion and do set themselves up for Daubert challenges and the whole nine. So and that’s you know, a lot of times we get hired for those instances because we have that expertise.

Dan Wolstein: So the best attorneys want the tightest cases. They want uniformity and agreement between their experts. So all part of a good discussion for what we’re presenting on.

Speaker4: I also think a good example to just to kind of bring it away from legal expert, that type of stuff is like having contractors, like having not having a contractor and having multiple people work on a house or on a project. Right. Why we have contractors is they keep everything tight. All you got to do is worry about the outcome. We’re in that role essentially where we we’re we have a lot of different things going on, but that’s what we do and we just provide you the best product.

Dan Wolstein: Yes. Exactly. So Paul, do you want to take this one, or do you want me to start off?

Paul Bourgeois: Sure. No, I’m happy to. And, you know, we foreshadowed these ideas just a little while ago and thinking about the different types of experts. And again, Dan’s kind of visual about the chaining or the sequence in which these opinions come are really important. And that’s part of why in the next slide, while we’ll or why we will talk about kind of the medical experts starting everything off and how everything kind of flows downstream from there. So those folks are the ones that are going to establish the causation for you as it’s listed on screen here. Right. Tying mechanism of injury to the medical findings thinking through or addressing any alternative causes and then using, of course, the literature. And we’re going to talk a lot today about Methodological issues, rigor as it relates to rule 702, and some of the more important items there as it relates to experts and the quality of their work, frankly. Our role as damages experts, as life care planners, folk experts and economists is to quantify those damages and translate those impairments that we receive from the medical experts into a few different categories. Right. So the vocational experts and we’ll unpack this in much more detail in a few, are looking into those wage issues.

Paul Bourgeois: Right. What what type of wage loss is directly tied to the subject incident. And the vocational evaluators going to come in and do in these personal injury cases, sort of that pre-post comparison. The life care planners are going to come in subsequent to that and again, leaning on those medical experts opinions, looking at what those future care considerations are. How much do things cost in terms of treatment moving forward? Similarly, same idea with household services. You know, if this individual is unable to perform, you know, X, Y and Z household tasks, how much would that cost to replace essentially? And we talk a lot about in our reports, our methodology that we’ll unpack again today. But methodology is so critically important. And Chris will talk about things in his role as an economist, like discount rates. We’ll talk about work life tables, life expectancy, those sort of things. So our job and if your expert isn’t doing this, that should be a red flag is to make very clear kind of our methodological approach. Anything to add, Chris? Go ahead.

Dan Wolstein: I was just going to say you don’t get to say because I say so in court. And even, you know, and even if you’ve testified hundreds of times, you still don’t get to say, in my opinion, you don’t get to say, because I said so. You have to look in court. There is accepted language. You know, there’s court language and court accepted methodologies. And so that, you know, that’s truly why experts matter. I think, yes, you can get an expert on the stand that says, I have a lot of experience in doing these evaluations, but I think it’s also probably very helpful for the triers of fact to hear. Well, as an expert who’s testified many times and and, and has been in court many times. I’ve still always adhered to this methodology when it’s applicable. It’s not you know, it’s not a net opinion, right? It’s not. I saw this person, I reviewed the records, and here are my opinions. It’s look, I went through a determination process the same way they would do in other court systems. Like Social Security disability insurance hearings. Right. So and I would say that that that’s why experts matter. The other thing is that to speak specifically to the, the slide headline or slide title, but also that just that every case is different, right? You know, you get experts to convey to the jury and the triers of fact, just how every case is different.

Dan Wolstein: There’s a lot of similarities. But I would say you know, if, if you have a medical doctor, a surgeon who injures his or her fingers, you know, that doctor may never practice again. And that type of fact pattern is going to be probably for a construction worker. The analogy would be a construction worker injuring his or her back or neck. Right. So why experts matter. It’s to go through these established methodologies and to be able to convey to the triers of fact in a way that’s you know it. You need to be able to distill the scientific language and then convey that in natural prose, you know, understandable language to the jury. And I think that that gets to the heart of why experts matter, because we take the science and we work cohesively. Optimally, we Optimally, we have a good, cohesive team of us going through the training process, from the medical expert to the rehab to the economist, and then we explain it to the jury in understandable terms.

Paul Bourgeois: Yeah. And importantly too, you know, before then, I see our role also as sharing that same type of insight with our retaining counsel. Right. And speaks to kind of this idea of clarifying case issues. And as I noted before, you know, just on the whole conceptualizing what this case looks like. What’s the plan moving forward, you know, what are the data points that are required in order to get you as the retaining counsel to whatever endpoint is your goal? And we certainly take pride in and look forward to, you know, having those initial discussions with counsel so that we can reiterate much of what we’re sharing here in an effort to you know, really key in on the important details and the fact patterns of your specific case. Anything to add, Chris, here about why experts matter that we haven’t shared?

Speaker4: Yeah. Just I adding it from a you know, an I guess an added advantage to our team specifically is you know, like Dan said, Doctor Watson, sorry had said every case is different. And we, you know, so in because we, we have such a regional presence too, like if you have a ski injury. Right. Like we have people who have a lot of experience with that, a lot of experience testifying. Dan. Again, Doctor Watson I’m sorry.

Dan Wolstein: Dan is fine. Dan is fine.

Speaker4: Has has a lot of you know, experience too, with like, construction injuries and all of that stuff. So, you know, you’ll get that added benefit of you know Doctor Bourgeois and I have done pediatric cases and we’ve all done a lot of everything, but we have very specific specialties that we can especially help your case out. Is what I was trying to get at, like, I do railroad injuries, like, specifically as well. So.

Dan Wolstein: When you go to a larger firm, you know, there’s there are a few out. They’re not they’re not as common, but there’s a couple out in California. There’s a couple in, you know, the South in Louisiana, Georgia area. And then Kincaid Wollstein is out of the Tri-State area, New York, new Jersey. But we have a a presence on the eastern seaboard. But you have you know, typically what I’ve seen is that many expert firms, they’re just when you have 1 to 2 experts in a practice, they’re generalists. They’ll take any case that comes in their door as long as they have the proper tools, tools to analyze that case. But then when you get into larger firms, you have people who can subspecialize you have people like Chris who can do the economic and the vocational. You know, you have we have a medical doctor, we have nurses. And there are other this isn’t just about Kincaid Wolstein. This is about other practices, too. But you may find with the larger practices that they do have medical personnel on staff. So subspecializing can make your expert more credible on the stand because they can they can explain to the jury why they have they have the capacity to be an expert, but they that they have a specialty area. And then explain to the jury, you know, why they’ve specialized and why they have special credentials in that area. You know, that can even enhance the the experts credibility and build a little bit of rapport with the with the triers of fact. Paul, do you want to take this one, this slide?

Paul Bourgeois: I just yeah, sure. Yeah.

Dan Wolstein: Okay.

Paul Bourgeois: We keep going back to this idea, right? Of the the chaining of opinion or the chaining of testimony. And as we’ve foreshadowed this starts with the medical experts. And we’re using medical experts as a catch all term to include, you know, any healthcare professional that might be providing an opinion regarding your client’s ability to work, for example, their future care needs in terms of treatments, medication, Etc.. And there’s a laundry list. And you’ll likely encounter many different types of medical professionals, whether they’re orthopedic specialists or neurologists or orthopedics specialists, etc.. And we work as vocational experts, life care planners and economists with all of these different medical professionals. And first and foremost, the goal is to establish that diagnosis and that prognosis based on their medical expertise. And I shared earlier this idea of just kind of everything coming from the medical expert, you know, flowing downstream. And as I just shared, we, we take those opinions and apply them directly to the work that we do and the clarity, the defensibility of those medical opinions are really important to establish that medical foundation that we then ultimately use for our report. So as clearly and as articulate, you know, as these medical professionals can provide those opinions, the better. And, you know, our office, your experts should work directly with them to you know, help obtain those opinions as they apply to the work that, that you would do.

Paul Bourgeois: So what are the objective findings? You know, looking at the slide here, the imaging, all the labs, all the information to support whatever diagnosis or prognosis they’re making thinking about the practical or functional impact of that, again, as it aligns to the type of work that they might do, any restrictions that they might have, the future care that they might need, etc. how permanent it is, you know, is this long term total disability versus something different? All to distilled down to kind of causality and, you know, connecting the actual incident and restrictions. Excuse me, connecting the incident to the actual restrictions and the disabling condition itself. So that’s where the medical experts come in. They’re establishing the diagnosis, the mechanism of injury, and looking at the restrictions. They’re connecting all the dots in terms of the medical background, highlighting the long term functional impacts. And they should also be taking a look at any pre-existing conditions or, you know, any type of issues that may have come before the date of incident or the subject incident that is at hand. And a good medical expert should be able to do that. Looking at apportionment. Right. Looking how you know, what is medically supportable? What else would you add, Deanna? Chris.

Dan Wolstein: I would just piggyback on the final point, which is, you know, imagine this. Imagine you’re litigating your case. And there are times where we go through cases and there’s really no medical expert. It’s just I reviewed these medical records and came up with my opinions. Well, by by getting by having a tightly knit team of experts, you can prevent certain things that might be problematic when testifying. For example, if a vocational expert has come up with an opinion just based on a review of medical records and there’s no medical expert picture this. Your your expert is testifying, and then the cross-examine comes. And the first question that they ask is, are you a medical doctor? The answer is no. Have you made. You’re not here to make any medical determinations. The answer is no. You’re not. You’re not here to present to the jury any medical opinions or conclusions. The answer is no. And then they put in front of your expert documentary evidence about pre-existing conditions. Well, that’s going to be difficult for your expert to navigate if your expert only has vocational credentials. Is a vocational practitioner. So once again, I return to the theme in order to maximize and make the best use of your experts. Having a tightly knit team is very important so that you prevent certain pitfalls from occurring. Your medical expert can address the pre-injury conditions, pre-injury diagnoses, whatever they may be, and then also address the difference. Post-injury. You know, what has what’s the contribution, what’s the apportionment. And by doing that, by having a tightly knit team, you litigate your case in a much safer way. You prevent the pitfalls, and your experts don’t have any problems trying to answer questions that are outside of their purview. That’s what I would add there. Chris, any anything to add?

Speaker4: Yeah. You guys covered it really good.

Dan Wolstein: Any any implication?

Speaker4: I’ll be chiming in. No, I’ll be chiming in later once we once we get into some more case stuff. Topic stuff.

Dan Wolstein: Sure. All right. Let’s move on here. Okay. Well, this is where I would say one of our areas of of our, our bread and butter or within our purview. So vocational experts, we’re in the realm of personal injury today, but actually, there’s employability experts testify on matrimonial matters. There are cases that have come to our firm about reasonable accommodations, things like that. But I think personal injury is really the fun area. I say that because every case is different. And I think cross-examination is like intellectual sparring. Now I don’t mean that it’s fun to sustain injury, but I think that there’s a lot of room for a very good direct and a very intellectually stimulating cross exam. And the courtroom is an interesting place to have to make to communicate your opinions and to handle a. Line of questioning with perhaps an attorney that has a dissenting opinion or dissenting perspective. So there’s a lot of there’s there’s a lot of nuance that can go into personal injury cases. And so I find the courtroom to be you know, very intellectually stimulating when you’re dealing with personal injury. Your vocational expert is typically working with two time frames, your pre-injury employability and your post-injury employability. And the same thing would be said about earning capacity. You’re working with two time frames, your pre-injury earning capacity and your post-injury earning capacity. When it comes to cases like construction labor, they when you take away a construction worker or perhaps a union member, like a journeyman carpenter, journeyman electrician those types of or like a mason, their earning capacity is very deeply rooted in their physical traits.

Dan Wolstein: We call them in at vocational experts often call them worker traits. What do you present with as a worker? What can you do and what does the job require? And so when a construct, when there’s a construction worker and an industrial accident, by taking away the individual’s physical ability to perform work, which would be Significantly different from an attorney who often does their work intellectually writing, you know, using the computer, drafting memorandums, whatever it may be. When you take away a construction workers physical capacity, you have depending upon the extent of the disabling conditions you have, you may have impacted their ability to earn money, just as in the example that I gave with the doctor, the surgeon. If a doctor or a surgeon injures his or her fingers and no longer has the dexterity required to perform surgery, you again. The the accident may have pre-injury versus post-injury may have impacted that the plaintiff’s ability to earn money. The other thing that we do in our reports, we use the repel model, which is the most widely cited model. But your experts should have a methodology, and within that methodology, they should also be able to talk about a framework. And for us, the framework as vocational experts that’s most widely referenced is the repel model. And so that we can standardize our approach to personal injury cases. Paul, do you have.

Speaker4: Can I can I ask you a question? Dan. So for those in the room that don’t know what a vocational expert is, which I know we’ve been talking about it, I could tell you as somebody that answers the phone as both an economist and that some, some, some people think a vocational expert might be one thing. And, you know, there’s a lot of differences. So from a outsider’s perspective, if you were to give an elevator speech on what exactly vocational expert is, what would you say?

Dan Wolstein: Yeah. Repeat the question.

Speaker4: How does it differ? How does it differ from an economist per se? Because a lot of people will call economists intending to get vocational reports. But right. And this is just a general thing that I happen to come across, is I’ll have people just say I, you know, I have this, you know, but they don’t know that they need a vocational expert personally. And I’ll get into this. When we talk about economics, I won’t I mean, I will do reports without a vocational opinion to run numbers for the simplicity of knowing the value or whatever else is going on. But I’m very uncomfortable with submitting a report without a vocational component because like the vocational is so strong compared to other folks who who, you know, also do this similar type of stuff. So yeah.

Paul Bourgeois: Sure.

Dan Wolstein: I’ll take that question in the direction that I think you know, the easiest way I, I really like that question. Because here you’re getting into experts that can be critiquing one another or disagreeing with one another. And I think that that’s where a lot of the, you know, that’s, again, part of the intellectual stimulation of our profession. And so I’ve received reports from the retaining counsel, and the retaining counsel will provide me with the other side’s expert reports, and I’ll receive an economic report from the other side and the other. The economist on the other side has assumed a total loss. And I look at the medical records and I look at the employment history and I say, pump the brakes. No, no, no, that economist, unless it’s Chris Garrett or another economist with vocational credentials, this economist cannot disagree with me. In court, it’s it’s the same that I wouldn’t be able to override a medical doctor in court. I I’ve always testified. I don’t make medical determinations. I make life care planning or vocational or vocational determinations, but I can’t override a medical doctor. And so if I see an economist saying, well, this individual who’s 40 years of age, who has typically worked as an administrative assistant is going to sustain a total loss. I say, wait a second. The medical evidence doesn’t support that. The medical evidence says that the individual is capable of sedentary work. And so I’m coming in from my specialty area, within my purview. I’m going to say I’m going to use a court respected methodology called a transferable skills analysis to understand pre-injury and post-injury employability.

Dan Wolstein: And basically what that is, is a computer program with all the requirements of different occupations. And you can reduce certain physical characteristics or mental characteristics in order to understand an individual’s access to the labor market. So in this example with The Economist, I might say, well, the individual has worked as an office clerk and an administrative assistant in the past. They’ve done light work, but now I’m reducing them down to sedentary. And that’s what the medical evidence supports. And actually at the sedentary level, they still retain the same earning capacity that they had because their work is an administrative assistant was compensating much higher than perhaps their past work in a similar clerical capacity, like an office clerk, which can be light work. And so I override I look at the details of what the economist is saying, and I use my skill set and my qualifications to say actually, there is no loss of earning capacity because the individual can still perform sedentary work and can re-enter the labor market at either a comparable level of earning capacity or sometimes even higher. Sometimes they may not have maximized their earning capacity before being injured other times. You know, maybe there is going to be a diminution. But when an economist, when I receive the other side’s report and an economist is making a vocational determination, that’s when I’ll say you didn’t do a transferable skills analysis. You don’t you don’t use a methodology that other that vocational experts use. And this is why your conclusions are, you know, should be overturned. And I can explain that to the jury. Okay.

Paul Bourgeois: Does that answer your question, Chris?

Speaker4: I think so, yeah. Yeah.

Dan Wolstein: Well, I know that. I know that you’re a lot. I know that you’re allowed to disagree with me on the stand, but economists there’s argument of whether an economist can Discuss in Pre-injury employability and earning capacity because it’s already demonstrated. So you could say, well, their wage data and economist may say, I can analyze wage data before they were injured, but post-injury employability and earning capacity. What credentials would an economist have for understanding post-injury employability? They’re not allowed. They don’t. They haven’t done vocational counseling. Unless again, it’s you, Chris, who you have those credentials. Right.

Speaker4: Right. No. Yeah. And I, I agree, I think a lot of times where, you know, it all has to come down, I think to the resources, which I think is what’s unique. I prefer to to have a vocational opinion that I’m basing my economic report off of, because I have a very clearly defined pre-injury and I have a very clearly defined post-injury. And those numbers have come from that methodology that the vocational experts puts together. And I can know that that’s that’s my foundation where economists go awry sometimes and it’s not every single one is the method in which they are relying upon the earnings. So some people they’ll use, you know, Bureau of Labor Statistics data. Some people will use the current population survey, some people will use the American Community Survey. As well. I might have gotten those names mixed up so we could fix that. So, you know, a lot of it comes down to where those sources are coming from. And, and a lot of times, like I recently had a case where the, the opposing person used consumer expenditure information, which was unique to me because I didn’t think that that was a measure. In fact, it wasn’t. So that was an opportunity for me to, you know, inform counsel that, hey, just so you know, this opposing expert’s report isn’t using a commonly accepted source. And so that was you know, helpful in them being able to litigate it and so on. So.

Paul Bourgeois: Yeah. And to jump in, you speak, I think, Chris, to the importance of experts on, you know, both sides of the issue. And as Dan highlighted earlier, you know, from a plaintiff’s perspective, we’ve sort of highlighted to start our approach. But importantly, I think you’re highlighting to the role that we can serve for defense counsel and highlighting any of those methodological deficiencies that you just noted and help to work to conceptualize how we might counteract that work product from the plaintiff. What else would you share about vocational experts? So. Anything we.

Dan Wolstein: Covered? Yeah, we had a healthy discussion on vocational experts.

Paul Bourgeois: Again, also.

Speaker4: Just to add as well Doctor Wallerstein is the former president of the our past president of the American Board of Vocational Experts. And Doctor Bourgeois is the g editor for the journal for ABV. So yeah, so definitely good, good people in the vocational world. And. Yeah.

Dan Wolstein: So it’s it’s important. I think Chris highlights the point where and Chris is the president of Aria, the American Rehabilitation Economics Association. I think what Chris is highlighting is that it’s important for your experts to have good credentials and to keep current. So you know, In court on the stand. Sometimes you need to talk about why your opinion should be carry more weight than other experts. And you want to be able to say, look, I respect the other person’s opinions and perspectives, but I dissent, I hold dissenting perspectives, you know, and then talk about maybe some of the accomplishments and career accolades that help you express. Look I understand what the other practitioner is saying, but, you know, I’ve done I’ve done more in this industry. You know, I think there’s needs to carry a certain weight that I used to use that methodology. And now I’m teaching in the field about why this methodology is better or is more effective. So you want current people, experts that are current and always improving their qualifications.

Speaker4: Just to also kind of throw in there just with vocational. I know you had said repel Dan in. So there are other methodologies to just in case some people are are writing down just things. There’s Vram, which is the vocational rehabilitation access model. And then I’m drawing a blank on other names, but just wanted to throw another name out there in case you have an expert using that. You know, it’s all very accepted.

Paul Bourgeois: So yeah. And importantly, like any experts, right. That methodological component is critical. And if it’s not abundantly clear, for example, in our reports, I think it’s page two, right? It’s all about the Rapel model for our vocational evaluations or in our life care plans that we’ll talk about in a moment. All of our steps clearly delineated in there in terms of methodology. And it should be a red flag to you as retaining counsel if you’re offered an example work product, for example, or if you ask about methodology and your expert is not able to clearly and concisely share that with you. That would be cause for concern for me.

Dan Wolstein: Funny story. Within the past 1 or 2 days, I heard about a critique that was discussing why they disagreed with the methodology and this point and that point. You know, the methodology, this, the methodology that and then in their very own report, didn’t have a, a section for a methodology. So you get all different, just like you get all different flavors of attorneys. You also get all different flavors of experts. Your your expert in my, you know, respectful and professional opinion should be able to they should address methodology with you before you even ask. It needs to be central. It’s the heart of the approach. If they can’t discuss it with you, then they can’t discuss it on the stand. If it’s not and if it’s, it’s not embedded within their report. You know, you get all different types of judges, and sometimes the judges say, look, if it needs to be contained within the four corners of your report, and if it’s not there then your, your expert may not even be able to discuss methodology if it’s not, you know, listed somewhere in their report. So these these things are very important. It’s just basically to say, look, I’m, you know, I’m using something a way of making my determinations that’s consistent with others in the field. So it’s a it’s a relatively simple thing. But if it’s it’s also a relatively significant red flag, if it’s not provided in the first few pages, or at least somewhere in their report.

Dan Wolstein: And so similar similarly to our expert vocational expert reports our life care planning reports, those also have a methodology as well listed in there. And the purpose of a life care plan. Doctor Bourgeois is our chief life care planning expert. He’s become very, very proficient at rendering these plans. But it’s to tabulate and make a determination as to the monetary costs associated with different forms of medical treatment as a result of catastrophic or non-catastrophic injuries spanning multiple medical disciplines. So, you know, it can not just medical disciplines, but also rehabilitation services like home, like a home care aide. Those can be very expensive or assistive devices costing out medications. But our reports and other life care plan reports will take a very systematic approach. Our methodology is to use the 50th and 75th percentiles and average them together, and to take a review of the medical records and look at what the medical doctors are saying is needed and then cost them out in tables in our report. And so essentially what the Life Care planner is doing, they usually this expert has a background in rehabilitation in some way somehow, whether it’s from a medical point of view or vocational point of view, such as myself. But the the expert is using their methodology to make a determination as to the cost of the future needs, treatment needs and rehabilitative needs, and quantify that so that it can be provided to the economist. Paul. Anything. Chris. Anything?

Paul Bourgeois: Yeah. I’ll jump in. And just to kind of again working with this chain of opinion idea. Right. So the VOC experts coming in and they’re connecting those medical opinions to job requirements. They’re looking at earning capacity loss. And what we’re doing as life care planners is, you know, kind of taking those same opinions and structuring them into a much more specific frankly tangible document for all of the costs that are going to be associated to this individual’s care moving forward. And ideally, the goal behind a life care plan is to provide some clarity on what this individual needs in terms of treatment moving forward. And spawned out of kind of the long term care disability management movement and the, you know, mid 80s, late 90s, lots of rehab counselors in particular working at insurance companies, really to mitigate loss, you know, from the the insurance company’s perspective. And that’s sort of the genesis of life care planning. It’s evolved over the years to you know, find a critical place in this personal injury litigation context that we’re talking about today. And as a life care planner, the idea is to take what can be. And I, you know, the medical expert opinions, they’re very often clear, concise and direct. Other times they’re not. And it’s incumbent on the life care planner and the individual in the role to correspond, navigate, work with those medical professionals to clarify those opinions and then ultimately put dollar values to what those services would cost.

Paul Bourgeois: So we’re itemizing all of these different services that might be professional services from a doctor or a therapist, for example, that might include, as Dan mentioned home health aide or home services. It might include medications. It might include surgeries or other types of interventions. And the role of the life care planner, again, clearly, concisely and in that tangible report is to outline all of those items by unit cost, and how frequent and at what duration this individual is going to require those items. So to say that differently, you know, we get the opinions from the doctors that the individual is going to need a acdf surgery, for example. Our job as the life care planner is to take that recommendation and then turn it into tangible, real world costs for you to then share as part of your case to inform stakeholders what this future care is likely to cost. So that’s the idea of a life care planner in a nutshell. And as Dan described earlier, right. We’re falling typically behind the medical expert and the VOC expert and the chain anything you would add or other kind of important items you want me to highlight here?

Dan Wolstein: I think you really nailed it. The thing that our office does that. When when applicable, and when possible, we will communicate through a questionnaire or even a teleconference or a virtual conference with the medical doctor. And sometimes they tell us over the phone, sometimes it’s wouldn’t be the first time through video conference. But we also have questionnaires. But, you know some things can come from narrative reports, like if a doctor is recommending surgery, but other times we’ll send out questionnaires. The point is to have concrete documentary evidence or concrete evidence, at least in the form of your case notes, to say where these items are coming from. But I think you covered it very well, Paul. And I think that basically we’re turning it into a scientific process because in court, being concrete and tangible, I think it really helps the triers of fact in you know, they have a significant. You know, it’s the decision making of what should be awarded that, you know, that’s a very significant issue. So, you know, turning it into understandable steps is really important.

Paul Bourgeois: We’ll move on to a couple of things to add, Chris, if I may. And then you can jump in. But one of the important things about methodology and Dan talked about you know, utilizing sources in your work and the idea of reproducibility he highlighted this idea of kind of the 50th versus the 75th percentile. And I want to speak just quickly to why a life care planner adds value to your case. And I often see sometimes in the role of defense you know, these narrative reports from a physician or some other medical professional, you know, providing the medical opinion, as you would expect, but also providing a dollar value as to what they expect this particular service might cost. And there’s a lot of issues with that when we’re thinking about the reliability and the validity of the numbers that are provided there. Think of the difference, you know, taking this report from a doctor who cites no resources, who provides no information about where those costs are sourced versus a life care planner who then comes in and says these are the sources that I used, which are standard in the industry. This is the exact methodology by which I access those resources. This is the formula by which I use those resources, resources to determine the bottom line based on the frequency and duration of the medical opinion that was provided. Those are two very different things, in our opinion, and we think provides a lot of value to your case using those resources, aligning with standardized methodologies, all critically important in this role. Go ahead Chris. Sorry I jumped on your toes.

Dan Wolstein: Just a short point. As as I said at the beginning of the presentation, it’s not because I said so. That.

Paul Bourgeois: Exactly.

Dan Wolstein: Right. Just to kind of package it up. It’s not because I said so.

Speaker4: I just wanted to add some specifics here too, because I’m sure a lot of you all will see life care plans. You’ll see medical cost projections, just like some things to to know of whether you need to get an expert involved to rebut said or, you know, counteract in some way or just bring it in for your own understanding of the damages in total is just this idea of you know, transparency. And most importantly, where was I trying to go with that? Oh, surgeries. Sorry. Yes. So a lot of times what we’ll see in reports is this surgery is going to cost $250,000. Right? Maybe some type of fusion, maybe some type spinal fusion, let’s say. Right, because it’s normally an inpatient procedure. I handle a lot of our cost resources and stuff. So sometimes I go a little cuckoo because I’m just staring at CPT codes and 50th and 75th and plugging it all into our database and stuff. So I guess I like numbers. I’m going to go on the record and say that. So you know, we’ll see that very flat, you know number. And what’s important is locality. And so is this all New York or do we know how many people are all over for, for the all over.

Dan Wolstein: All over, all over.

Speaker4: Yeah. Let’s assume let’s assume all over. And so what we’re going to use some geographical examples. So I always look for non flat numbers when I’m looking at a, at a at a surgery. But like some key indicators. So sorry. Let me get back to why it’s important to not have flat numbers. Is again based off of locality. So we all know that a dollar in Kansas City is different than a dollar in New York, right? Given the weight and just the geographic adjustment and so on and so forth. So a good life care planner is going to get you the local costs to in order to make it the most, you know, we use the first three digits of the zip code. But a life care planner should be asking for the zip code and should be able to get it down to the precise location of the person in terms of the fees. So that way it’s an accurate representation of, you know, their life care plan if we’re going to use it in literal terms. There are so many people out there that will just use flat numbers that they looked up unfortunately to with some AI. I’m not saying some people are doing that, but you kind of curious when they are, you know, very unique and, and seemingly correct, you know, assumptions for, for different prices, you know, where, where that came from. So, you know, a good life care planner. And I always like to do this too, from an economic standpoint, is being able to trace back to the source of that fee for every single thing that’s recommended. Like, that’s going to be a foolproof case to show the value of your damages. If you get a life care planner that likes to take shortcuts, it’s going to eventually it’s going to not pan out, you know.

Paul Bourgeois: So and another good example of I told you so or because I said so versus here’s the scientific methodology to support my opinion.

Dan Wolstein: I’ve testified hundreds of times and my answer is never you know, a lot of experts that have been around for a while have testified hundreds of times. My answer is never going to be because I said so, you know, it’s it’s look, here’s my methodology or here’s the data source, but I if I were this is just my personal maybe not my professional opinion, maybe it’s just my personal opinion. But if I were on the jury and an expert said because I said so, that would be a really big red flag to I don’t know how attorneys see it, but maybe they see it similarly that you know, it’s it’s a credibility issue. You know, it’s it shows bias or it can show show bias. But look, being able to point to a source or a data point, you know, I think it really does a lot for the experts credibility.

Paul Bourgeois: Anything to add here, Chris?

Speaker4: No. Just, you know, a good life care planner will make a good economic report, too. So it’s helpful, you know, from the last guy on the, you know, end of the stream type perspective. You know, it really does make a difference. I it’s one of my pet peeves trying to cost out a bad life care plan. So hopefully more people can start doing that.

Paul Bourgeois: And that’s one of the things that the second half of the presentation will really highlight, will describe sort of these individual roles and functions. And we’ll talk next about how we can work sort of synergistically and avoid those headaches that Chris is alluding to in the final time that we have left. Our, our goal is to kind of talk about now that you understand who these different experts are and what we do, you know, how we can maximize the use of experts maximize the collaboration between experts, and largely just talk about how you can use experts as part of your case to add value, how you prepare to use different experts and some of the tips and tricks that we would leave you with, I suppose, as we think about considering adding experts to your case. And the first piece here is the, the timing of expert engagement. And, you know, candidly, timing is probably one of the biggest predictors of expert effectiveness. And, you know, the sooner you can get us involved. Really helps to prevent downstream type issues. And we’ll talk later about some of those in particular where you know, maybe the medical expert and the VOC expert and the economists aren’t communicating. Well. And again, some tips that we can use to avoid some of those. So how do we go about utilizing all of these experts in tandem early on so that we can identify all of the potential issues and concerns and really create those synergies and alignments that we’ve alluded to and will unpack in more detail in the second half of this presentation.

Dan Wolstein: And just a quick point. I’ve heard more stories about experts being excluded, not because of their they’re disqualified on the basis of their qualifications, but rather because their reports weren’t submitted to the court. You know, before discovery deadlines. So we there are firms like ours. Kincaid Wallstein that does very you know, we’re very agile and we’re able to do we’re able to meet tight turnaround times and tight deadlines, but not all experts do. And I think the more time that you have to prepare, the better. Again, I’ve heard war stories about experts being excluded because their reports weren’t submitted soon enough.

Paul Bourgeois: Yeah. So bottom line, do you want to give yourself enough time to make sure that you can get all of these variables in line? You know, as you put your case together and, you know, with early engagement, as Dan is describing, we can get ahead of a lot of the issues that you know, can become headaches later on. And, you know, what we want to avoid are those kind of 11th hour engagements where then we’re scrambling, you know, to connect with the other experts. We’re working more quickly than we would like to expedite the report. All things that could have been avoided. And thinking about the timing of retention. Okay. Anything else to add here, Dan, in terms of the timing of expert engagement?

Dan Wolstein: No, I think they’re like just the quick point that there are those that specialize in tight turnaround times, but easier when it’s when you have ample time to prepare a good report.

Paul Bourgeois: Any other recommendations in terms of kind of the retention process or things that come to mind for you, Dan, as just important items for maybe that council in the room that hasn’t retained an expert before, or just just important considerations in thinking about this.

Christopher Skerritt: So I would say that.

Dan Wolstein: You probably want to touch. It’s a it’s a good practice to touch base with your expert. Just get a sense, you know, build the chemistry. But you know, if it’s your first time working with a firm, if you know what to expect and you have a long standing relationship, then you already know. But if it’s the first time you’re establishing a new relationship with an expert firm, get on the phone with some of the experts. Get a sense of how they present themselves, and ask about methodology. But that that’s also a nice part of, you know, the process is, is just getting to understand the team that’s working on the expert report.

Paul Bourgeois: And of course, as Dan described earlier, critically important. Right. You want to know what you’re signing up for. You know what you’re paying for, frankly. And you know that initial onboarding, those initial discussions are critically important. And, you know, certainly at Kincaid Wolstein, we have lots of repeat business. But, you know, we take those initial discussions very very seriously and a critical component of kind of the timing and the sequencing building your case. Chris, anything to add there about timing? We were describing kind of early involvement, avoiding late engagements, those types of things.

Speaker4: Let me tell you about timing. So from a stress perspective, I, I’m a big proponent for timing because as the last guy on the totem pole, again, not that it’s a bad thing. I get the brunt of mistimed reports more often than not. What ends up happening is it’s, let’s say, a late engagement. You know, you got to think there’s a time lag between each expert. So luckily with the Unified Team approach such as, you know what we’re presenting here today you you don’t have to deal with that time lag as much. However, there’s still time lags regardless of the process. So if it is a late engagement in terms of the retaining counsel engaged us, you know, at a at the very end, you know, we we have to be pressured into, like, we can’t do as thorough of an analysis. With regards to the, the, the timing and being able to double check. I mean, we, we, we do have the ability to operate within a 48 hours notice. However, you know, there is a lot of involvement that goes into that. And so you know, to not stress your expert out to, you know, engage them as early as possible, even just for an initial discussion, just to say, hey, I have this case. You know, which I might potentially need you on. Let me get an idea of whether I can engage you as an expert or not. And then worse comes to worse, the. You can’t do it at the moment, but at least you have that expert’s contact for future business in case you do need them. We always we always like those types of conversations, so.

Paul Bourgeois: Yeah. And just to say that a little differently, you know, we want to make clear that, you know, for a lot of cases you’re going to be working with multiple experts. And Chris’s point about time lag I think is important. You know, the one scenario is maybe you’re working with one medical expert who then provides their opinions to a separate expert, who then passes their opinion on to the economist, who then you know, returns that report back to retaining counsel. So all of that takes time. And one of the important parts I think, Chris is highlighting. Is that a kind of one stop shop firm such as ours, where all of these experts are in-house? That timing piece is something to consider when you’re working back from you know, the date in which you need to serve your reports. So critically important here, to be sure. This next slide is about collaboration between experts. And we’ve sort of been identifying this as a critical topic throughout here. But you know, bottom line is that experts have to communicate. It’s a little bit easier when it’s all in-house, as we’ve described. And you know, Chris, Dan and I work together daily. And that communication is, is quite fluid. But you can probably imagine some of the headaches or the time line delays when your experts aren’t communicating well and, you know, when everyone’s working in a silo or they’re working independently.

Paul Bourgeois: That’s oftentimes when the inconsistencies can appear, when the lack of collaboration happens. And as a firm, you know, we’ve identified some methodologies to really ensure that we can collaborate efficiently. So one thing it sounds simple, but just the fact pattern, right. Or the chronology of the case, you know, ensuring that the the vocational expert, the life care planner, the economist to use three expert examples are all working off of the same information, the same chronology. They’re aligned in their definitions. Right. Chris knows when I use some type of life care planning language or vocational language in a report you know, very clear to him in terms of what that definition is and probably the most important piece here in thinking about communication and collaboration is avoiding conflicting opinions, right? The last thing that we want is for the vocational evaluation to reflect some alternative medical opinion that’s captured incorrectly in the economic report. And that’s why this idea of collaboration and communication is so important. How do we build cohesive narratives? How do we integrate all of the findings across the reports? How do we avoid any of those contradictions or internal consistency errors that you know, opposing counsel will be poking holes in, you know during cross as an example. Jump in here, den.

Dan Wolstein: Yeah. I’m ready. I’ve been thinking about it as you’ve been talking, but let’s let’s just, you know, in the chaining of events. Let’s come up with a very quick and oversimplified example to illustrate. The point here is, you know, you have a construction worker earning 100,000 per year. Doctor says sedentary work that goes off to the vocational expert who says loss of employability. You know, Pre-injury earning capacity of 100,000, post injury earning capacity of 50,000. That gets handed off to the economist, who then says, I’m going to work with this diminution of 50,000 to come up with the the total loss over however many years of work life would be remaining. And, you know, even though it’s oversimplified, the most critical and crucial parts of the narrative, you know, you have the experts, they have the adequate foundation to come up with a total a calculation for the loss.

Paul Bourgeois: Yeah. So really important there again. And the issues, I think arise when that communication is lacking or, you know, folks aren’t collaborating. And I think Dan’s example is a really good one where you know, this idea of kind of a pre disclosure inconsistency check. These are the things that you, as council can do to make sure that you know, you’re not caught surprised you know, down the line, you know, come trial time. Anything to add here, Chris, in terms of collaboration?

Speaker4: I was going to say, you know, to to compare it to something else because that’s what I’m trying to do today. That’s my new role. Analogies. I’ve been an analogy guy. So it’s a lot like football. And so each each player on a football team obviously has their own unique role. Right. Got the quarterback. Center wide receivers right. I’m just using a gross example right. So think you know, what we try to do is we try to deliver that approach. We could advance the ball down the field. If you have people that are siloed, such as PhD economists who, you know, are very professorial and say just because they say so, this economic theory is valid and therefore, you know, that’s what they’re going to go with during testimony when they don’t have the concrete evidence to back it up. So the fact that we’re all interwoven with the same approach in terms of the theory of the case, that helps you have to make less phone calls for your cases just to.

Dan Wolstein: Avoid less stress. Avoid stress? Yes.

Speaker4: Yes. Let us do the work for you. Like, let let us collaborate. I can tell you, it’s I’ve had people who have said, you know, I don’t want to say Mr. Scary because they called me Chris, but they say, Chris, I’m really glad that I hired you because I was able to save on the the headache of you know, potentially getting this case thrown out down the line due to just the economist and VOC expert conflicting and the economists also costing out the life care plan, not, you know, using their own stuff, saying, oh, we’re going to we’re going to provide probabilities up until this person’s 100 when their life expectancy is 76. Right? That’s an extra 25 years of damages that can potentially get presented to the jury, where, you know, that that doesn’t make a whole lot of sense. That’s why if you have a life care plan or an economist that are on the same page, that economist is going to stop the life expectancy at that point, they’re not going to go over and then you’re going to be reading about this on LexisNexis In the next couple of weeks, you know. So.

Dan Wolstein: Okay.

Paul Bourgeois: Let’s move. Yeah, a really good point, Chris, I think. So this next one’s all about preparing experts for testimony. I’ll let Dan take this one. But, you know, I like the idea of kind of testimony being a performance based on facts. And Dan talked earlier about kind of the intellectual sparring, and, I think a good place for you, Dan, to to share.

Dan Wolstein: Sure. So I think especially for newer experts, you it’s a good idea to do a few mock trials. Sometimes it’s nice when the attorney firms align with the expert firms in that they have mentors. And the mentors want to take a few new trial attorneys through a mock trial. And then, you know, if the expert firm is larger. Sometimes there are some newer experts that may need to go through a direct and a cross exam. But, you know, with newer experts, it can I think preparing your newer experts is very important. Definitely going through a a cross exam and a direct is important. But, you know, once it’s even if you have an expert that has testified many times, it’s still important to synchronize before before putting your expert up on the stand, just to make sure that you update them about the latest details or developments in the case. You should be able to if if it’s a more seasoned expert, you should be able to just go through their report with them, but you still might need to, you know, if they’re testifying, subject to connection or if there’s foundation that you want to alert them to.

Dan Wolstein: Still go over those points. Talk talk about how you want to qualify them in court, right. Because a lot of times the other side will stipulate and a seasoned expert will tell you, do not stipulate to my credentials. Let’s talk all about all of my qualifications and accomplishments so that they understand, you know, if they stipulate, they don’t get to hear about those things. But if they listen to me go through voir dire, if they listen to me talk about my CV and my career accomplishments, they’re going to understand why I’m able to render these opinions and why there should weight should be given to our or my opinion. And of course, some attorneys. There’s also stylistic issues to some attorneys that have testified for. They want me to come up with my ultimate conclusion at the beginning and then talk to the jury about how I got there, ultimately leading up to the end of direct. So I’ll talk about my conclusion in the beginning, talk about how the sausage is made, and arrive at that conclusion at the end. So there are stylistic ideas, stylistic preferences to sort out as well.

Paul Bourgeois: Yeah. And just to go back to one of your points, Dan, about kind of that pretrial conference, we require that as part of our onboarding documents to say that differently. You know, we require that of our retaining counsel to schedule that meeting in advance, a trial, so that you can have those discussions. And while, you know, for veteran experts, that may be just a review and an update on any changes. It’s so critical again that we write that into our contracts. Anything else you would add here? Oh, and I guess two, if that’s not my point there was that if if you’re retaining an expert who doesn’t ask you to meet before the trial, that should probably be a red flag to you. Anything else to add, Chris or Dan, about preparing for trial?

Speaker4: I would just say rely on your expert, you know, ask them questions. If there’s something that you don’t know, give them a call. I answer calls all the time. I’m always answering, you know, different questions, looking up different articles or or journals for you know, depending on the side that’s getting hired to you know, provide additional foundation for you know, combating the opposing expert and really help with, with making sure it’s a solid approach. And so, you know, for example, and I would say it, you know, in defense cases, it’s obviously, you know, we we do get hired to look at the plaintiff, but I’ve been in plaintiff cases where I’ve been hired to look at the defense, who then went back and forth and back and forth. So you know, I always when, whenever I’m looking at somebody else, like I’m looking right at those resources. And so you know, a good example to with life expectancy, people using back to 2011. I mean, you want to get the, the, the updated life expectancy tables and a copy of those life expectancy tables. And then you have that for testimony. I mean, that’s going to be super helpful. So again, you know, I know we’re talking about preparing the actual experts, but you know, leaning on the experts because I mean, you are paying them and they’re they’re there to, you know, assist you with it.

Paul Bourgeois: So yeah. And to take it a step further, I mean, it’s an expert’s job to teach, you know, whether that’s the judge or jury, you know, in the trial itself, but certainly also with retaining counsel to Chris’s point. Right. We all have lots of discussions as we’re conceptualizing different cases about, you know, what approach might be best given the fact pattern or whatever. So don’t hesitate. Again, to Chris’s point. That’s from our perspective. That’s our job is to educate, is to teach to include retaining counsel. And don’t hesitate to ask those questions. So some other kind of recommendations up here and thinking about preparation that you can reference some tips like creating a takeaway sheet, you know, engaging with your experts to confirm anything to add before we go to the next slide.

Dan Wolstein: I think we can move it along here. I’ll just cover one point before you get into it, Paul, which is just preparing your expert for deposition. Again, latest developments of the case. Error errors in the other experts, methodology that may come up or, you know, new items that have come up since your expert rendered his or her report. Just giving them the latest information before deposition.

Paul Bourgeois: Yeah. And Dan, beyond kind of using deposition to, you know, lay the foundation and anticipate hypotheticals, you know, kind of lock in opinions. What are some other things that come to mind just in terms of your role as an expert with depositions that you consider any important items that you would add?

Dan Wolstein: I consider the first call for retaining counsel, the interview of the expert. They want to see your characteristics and how you present. I consider the deposition the the interview from opposing counsel. So I think they’re going to see does this person get cantankerous or cranky, so to speak, when aggressively cross-examined? I think the detonator is feeling out the expert to see how they’re going to present a well prepared expert. You you, as attorneys, can help by preparing your expert, by giving the latest information from the case, as I as I had initially kind of presented that idea, But Also you know, just you want to get a sense of your expert, you want to make sure that your expert is not going to give in or take the bait. So I always tell attorneys when I’m aggressively cross-examined, I always maintain a professional decorum. I think that a lot of attorneys really appreciate that, because if you if you give in and you get you kind of stoop down to that aggressive question and answer dynamic, I think that that’s going to happen on the stand as well. And that’s really where it’s hard. That’s where it’s the most harmful. Right. I mean, you have a jury that’s meeting an expert for the very first and presumably the last time. And I think If that expert is going to start yelling back and forth with the cross-examining attorney. You know, my opinion as, as a. My personal opinion would be that I would I would lose a lot of. Why is this person yelling back and forth? It must mean that the attorney cross-examining the expert has a really good point. So you know the first place that I think you’ll get a sense of whether your expert is good under pressure is in deposition and just instructing your expert. You know, the importance of maintaining composure and equanimity.

Paul Bourgeois: Any other tips, Chris? And thank you, Dan, that you would share in preparing for depos or expert consideration.

Speaker4: Yeah. So I would say, you know, kind of going back to the theme of relying on your expert. You know, if you’re if you’re, you know, you obviously have your own expert, and the assumption is that you will also be given be given the opportunity to depose said opposing expert. You know, ask ask your expert for depo questions. You know, we do that quite often where, you know, we’ll look at a case and we’ll give you questions that you can ask, and it helps to you know, it helps it helps your case and, and helps you get you know, the, the points needed you know, to, to progress your legal, your theory of the case forward. So. Yeah, that’s I yeah.

Paul Bourgeois: Really important point, Chris. Yeah. And to your point, you know, something that we do regularly at Kincaid Wolstein and for a lot of different reasons, if nothing else, to make you feel better prepared as counsel and Engaging in these depositions. And that’s why you hire the experts, frankly, right, is to help them provide their expert opinions, to include the type of questions that you may ask in opposing expert as part of your deposition questioning. Anything else to add here about depositions, preparation tips or tricks?

Dan Wolstein: Probably just the point about deposition is that direct is where you’re you know, I find it easiest to convey my points in deposition. You’re really just starting off with a cross exam and maybe 1 or 2 questions from attaining counsel at the end of it. So it’s more just a defense type of back and forth. But when you when you bring your expert up on put put your expert on the stand, that direct is where I would hope the attorneys and and the experts do their best work is on direct.

Christopher Skerritt: Let’s go to visual.

Dan Wolstein: Aid and demonstratives.

Speaker4: So I’ll talk about that because that is my, my specialty. And we’re slowly advancing that a little bit further. But you know, our reports and, you know, a good expert’s report will, will give you know, additional data visualizations because in thinking about, again, this chain of, you know, starting from the medical expert all the way through, you know, that expert then testifying on the stand, the job is to convey to the jury an understanding of what is going on. So a good expert will have those those visuals to be able to back up and show the story that’s going on. So that’s just something to look out for and never hesitate to ask your expert, you know. Hey, is it possible for you to put together some graphs or tables for me? You know, as as we prepare for trial, I’m actually doing that for a couple of attorneys right now. We’re I’m you know, giving them things that they’re then going to go blow up for, for an exhibit, so.

Paul Bourgeois: Yeah. And to jump in here, Chris, you know, pretty powerful when we think about kind of the experts performance and, you know, the value that they can bring to testimony in the courtroom in particular, and to to highlight your point about the visuals and any examples that can be helpful and useful. Certainly something we would encourage. And we don’t want to lose the, the jury and you know, hour or two long monologue, right, about our professional opinions and my experience and in my professional opinion, you know, having that tangible document maybe up on screen so I can talk about as a life care planner, the frequency and duration, or, you know, how I took the medical experts opinions and translated them directly into this tangible document? You know, those are things that we can do with some visual aids and other items that we can use as part of demonstration. And certainly, Chris two, in thinking about economic projections and being able to visualize what can be complex topics and ideas that can be difficult to understand visuals can certainly be helpful with that. Anything else to add here, Dan?

Dan Wolstein: No, I think we can move move it along here.

Paul Bourgeois: Okay. Yeah. And we’re getting somewhat close to the end. So we’re expediting some of these slides in an effort to really highlight what we think are some of the more important points here. Anyone want to start with cross-examining experts?

Christopher Skerritt: Well.

Dan Wolstein: I guess I would say the most, the most effective cross-examinations are ones where the attorneys are appropriately aggressive, meaning that they, they have a you know, they’ve gone through a good line of questioning and they kind of hold your feet to the fire and say, you know, here is X Foundation, here’s Y Foundation, and your opinion is Z. Explain that to the jury. You know that. And you need to be able you need to be good under pressure because that’s where the rubber meets the road is making those final points and saying, look, I have a I have an aggressive cross-examining attorney, but I also have a scientific foundation to my opinions.

Paul Bourgeois: Yeah. And critically important, right to highlight any of those inconsistencies as are listed on the board here. Right. Any bias that the expert might have. We talked at length earlier about issues related to flawed methodology, right? And not being able to clearly articulate what that methodology was, which is in stark contrast to kind of our overarching themes about, you know, why you hire a company like ours that has a solid methodology that is clear and transparent in terms of the way we approach these different types of cases. And in an effort to mitigate any, you know, inherent bias that that might be there. One of the things that I would say, in my experience, kind of helping folks prepare for cross exam or putting defense oriented reports together, is that defense experts often rely on, you know, selective record review. So maybe they’re only looking at doctor A versus doctor B. Maybe they’re looking at kind of quick Im notes or records or, you know, broad statements that they can cherry pick from. Some of these non treating reports and an effective cross exam, you know, help and prepared with your expert is really going to help to expose some of those weaknesses and poke a lot of those holes in the reliability and validity of that opinion as we talked about earlier. So we want to identify bias. We want to look for that flawed methodology. We want to highlight any inconsistencies that might be incorporated into the report, all while at the same time making a pretty clear contrast with the methodology of your hired expert, so that we can make that comparison and make it clear to judge and jury.

Dan Wolstein: Right.

Paul Bourgeois: Anything else to add here?

Dan Wolstein: No, I think we can move to the next slide. Just I would reiterate, reiterate your final point, making it clear to a judge and jury.

Paul Bourgeois: Expert credibility here. Credentials matter, to be frank. And, you know, at the start of the presentation today, we didn’t spend a whole lot of time talking about our credentials. But to Dan’s point earlier, relative to voir dire and being able to highlight those as part of, you know direct testimony you know, what is your background? Do you have advanced credentials in the area? So, you know, do you have a I’ll speak for myself here, a PhD in rehabilitation, a master’s in rehabilitation counseling, an undergraduate degree in disability studies. All of the credentials specific to life care planning or being a rehab counselor. Pretty damning. And I’ve seen a few where, you know, the the opposing life care planner doesn’t have a single credential that would qualify them to pull these types of reports together. Pretty easy for me when I’m writing a defense oriented report to highlight those types of deficiencies. Yeah. So these are all things that we want to consider when we’re thinking about credibility. You know, Dan talked earlier about the hundreds of times that he’s testified that, of course, matters. When you’re thinking about and retaining experts and you should be asking those questions candidly from our opinion as part of that retention process. What is your background? You know, how many cases do you do? How often have you testified? Those are really important foundational questions. Jump in here, Dan.

Dan Wolstein: Sure. You’re always good at reading me. You know exactly what I’m about to jump in. Some attorneys have called me up and they said, I want to use you because you. This was back at the beginning when I started testifying. They said, I want to use you. You don’t have a long history. You know, I like the way that that comes across to a jury. And they selected me because I didn’t have a long list of appearances. Now, I suppose an attorney would go with a different expert if they wanted that. But you know, you you have different attorneys preferring different things. Some some, like the professorial type where they’re going to get up and testify and talk about their role as an academician or, you know, their progression through academia and at their, you know, teaching at the graduate level, whatever it may be. But, you know, different attorneys are going to prefer different backgrounds. And so, you know, that initial introductory call is important to flesh that out and find the expert that you’re looking for.

Paul Bourgeois: Chris, anything to add about credibility, background, what to look for when hiring experts?

Speaker4: Reiterate all of what you guys said. Do check you know, or I guess this is more for defense. Yeah. Actually, no. Do check if the the experts got any Daubert challenges as well. There are a fair amount of people who frequently get work with a substantial amount of, of Daubert challenges with without realizing it. So you know, just it’s always good to, to look into your experts, see, you know, ask for that list of deposition appearances, look into the last couple, just, you know, see how they did get a general you know, background check. It’s it’s like the hiring. It’s like you’re being HR, you know, you’re just double checking, making sure the person’s legit, you know? So.

Paul Bourgeois: Yeah. And it speaks to this, just this idea of credibility. Right? You know, you want someone that has good credibility. Maybe their name precedes them in terms of their role and you know, function in the space. And so think about credentials and experience. Dan talked earlier about, you know, how they present. Are they clear? Are they neutral? Are they logical. Are they able to Transparently describe their methodology. You know, these are all things that can become pretty evident in an initial call. And of course, as experts, we take great pride and effort to ensure that we’re coming across as intended, as, again, we’re we’re teachers and largely putting on a performance and and that matters. The one piece I would add here, too, is this idea of kind of scope creep or scope of practice. And Chris highlighted this earlier. And this is where it kind of all start with our pitfalls or things to highlight. The economist that’s providing a vocational opinion, the vocational expert that’s providing an economic opinion, the life care planner who is making their own medical opinions. You know, these are all things that we see and we identify you know, in our roles and something you should be looking for, too, you know, as part of those initial discussions, the The initial onboarding process. And let’s get into the common pitfalls to avoid here. Any jumping out to you, Dan or Chris, that you want to start with?

Dan Wolstein: I liked yours about not stay in your professional lane.

Paul Bourgeois: That’s a good way to write.

Dan Wolstein: Yeah. Scope creep. You know, just not drifting out of your your bailiwick or your sphere of influence.

Speaker4: Yeah. So. And as somebody that has, you know, again, all all of the hats, you know, at my disposal I could tell you where, you know, the lines do creep pretty often. And so it’s important to, to, you know, understand and, you know, trust that, you know, your expert or, you know, start with you know, just asking questions regarding you know, costing out life care plans. So, like, I know, for example, there are some economists out there that will you know, quote unquote do a life care plan without anybody being a life care planner on staff. So it’s like, how how does that make sense when you need a life care plan, or at least a doctor who is able to write a life care plan to provide that opinion. If you’re just going with an economist with no medical background, no training whatsoever you know, you’re really risking a lot in your case. So.

Dan Wolstein: And yeah, to that point, I’ve seen economists just rely on like, life care planning data, like the cost of a home home attendant. And they are perhaps I’m depending on the qualifications. Maybe they can talk about that, but they don’t. If unless again, unless they’re Mr. Christopher Skerritt, you know, where’s where’s the rehab credentials to talk about the reason why that may be needed. So you’re putting, you know, do you really want to jeopardize a one, two, $5 million case? You know, an expert that may possibly be practicing outside of his or her scope.

Speaker4: Add to that because we’re talking about loss of household services, which is this large gray area that there’s a lot of conflict. And so, you know, depending again, on the theory of the case and how you know, how this person was injured, their family structure, their family dynamic and both personal injury and wrongful death matters for that. You know, it just depends, again, on the type with how the numbers are handled in terms of, of you know, the, the ultimate calculations. Wrongful death has personal consumption. A lot of people don’t know to look up. Okay. Is this state personal consumption versus personal maintenance? Because there are differences and there are different tables. But sometimes people don’t do that. So but for lots of household services, you know where like a Rehab background comes into play is that transition over time and again, that transferability of of skills which can be used in both the workplace and at home. A lot of times when we’re interviewing people, we’re asking about their ADLs, because that in and of itself is an indicator of employability. If they’re taking out the trash and they’re having no problems, no symptomatology whatsoever, that sometimes leads us into a conclusion of, you know, obviously we have to triangulate and put it through the methodology, but that’s just one component.

Speaker4: We’re an economist can and I will say, not all. You know, I am going to disagree with Dan on this, on on some of it. And economists can look at the economy and provide the replacement value for the service. But in terms of the frequencies and, you know split of what was actually done throughout the day. And again, that changing in time of you know, the loss of the household because as the person gets older, it’s expected that they’re going to continue to get worse or at least stay stagnant. You know, a life care plan or a voc rehab person can provide to that. However, if The Economist does make the assumption of, all right, we’re just trying to identify these hours. And here’s what it was. That’s when it’s okay. But we can’t conflate, you know the two sides and that’s where you know, it. A rehab based one is a lot better than an economist based one. I guess is the easy way.

Paul Bourgeois: Yeah. And I’ll say that just differently, Chris. Yeah. So, like the economist is saying, here are the numbers, right? Versus the rehab person that’s saying here’s why. Right. And these are the things that maybe they’re no longer able to do in terms of their ADLs. And you know, here’s how many hours per week they may need home health services to replace whatever. So that’s the idea behind it, right? Having someone with the proper credentials and scope of practice to kind of make some of those recommendations. And that’s where we come in to also kind of highlight when that’s not happening on the opposing side. And why early engagement to kind of go back to the screen here and to our comments earlier is so important, right? If we can really dig into those other reports early on, thinking from a defense perspective, that’s always better. Anything else to add here on pitfalls? Dan.

Dan Wolstein: I think we could probably go to the next slide.

Paul Bourgeois: Yeah, yeah. And we’re sort of working toward now sort of pulling it all together. Right. Wrapping it all up. And I like the title of this building the Damages story, because that’s ultimately what we’re doing. Right. Counsel included is telling this individual story and integrating all of the different facets of this person’s life into that single narrative. Right. And that’s why, you know, working with a cohesive expert group makes that story much clearer, right? When you’re delivering it to judge and jury and ultimately that’s the goal. So how do we integrate all of these findings? How do we have this standardized story that we’re telling across the reports? How do we change those opinions and the way that we’ve described throughout the presentation today? Those are some of the things that come to mind for me. And in telling a story, Dan, Chris, what comes to mind for you?

Dan Wolstein: Just working with the practitioner that comes before you? Like the medical expert, you know, it comes down to what the medical for me comes down to what the medical doctor is saying. So if the doctor is saying it’s doom and gloom, you know, we’re going to talk. I’m going to talk about those disabling conditions and say, hey, based on what the doctor’s saying, this individual is unemployable. There’s just too much pain. How can a person be productive while in such severe pain. If the doctor is also saying strike that if the doctor’s opinion is this an injury was a soft tissue. You know, sprain or strain or soft tissue injury and it’s fully resolved and fully healed. Well, you know, that’s going to dictate my opinion to that, that the person is fully employable and retains full earning capacity. So just working with the foundation that is set right.

Paul Bourgeois: And we tell that story by connecting all the dots. Right. This is the injury here, the impairments. This is the functional loss. This is the vocational impact. These are the financial impacts. This is the long term future care needs right. So we’re pulling all of these components together in a clear, concise and standardized way so that the story makes sense. Right. And that there’s not gaping holes, internal consistency errors, things of that nature that are not going to be delivered or presented in the way that you intended to as retaining counsel. And that’s what we’re hoping to avoid. Chris, what would you add here?

Speaker4: I would just say you know, again, as as the person that’s really I think I’ve had the privilege of going through the whole the process of of taking it from the medical expert and then bringing it through to the final product. It is a very involved process where, you know, we’re doing the vocational and the life care plan simultaneously, and that then gets costed out into you know, the economic report, which is, you know, both the, the future, you know, wage loss discounted to present value plus the you know, the life care plan again grown out and then discounted back to present value to give you a total number of what that case, you know what what those damages are with with all the backup and everything. So you know, it is a rewarding and I guess, tiring experience that we get we, you know, we, we enjoy every day. And so rigorous. Yes, yes rigorous. So much that my wife even works for our company now. So we’re just 24 over seven, you know, damages, damages, damages. So.

Paul Bourgeois: Yeah. Yeah. And I’m moving forward just a little bit here, skipping over some of the other slides. And we can certainly go back Dan or Chris if you had something in mind. But this one came to mind. Yeah. This slide I think kind of tells the story here. You know, the the goal is to maximize the use of experts and be intentional about it. Right. Picking the right expert at the right time for the right case is really important, right? So you know, bring in the spine surgeon versus the general orthopedist or engage that economist early, right? When you know that by state law, you need to reduce those figures to, to present value. So be strategic. Engage those experts early. What else would you add here, Dan and Chris, about maximizing the use of experts?

Dan Wolstein: Put your experts in touch with one another. That is a huge you know, you’ve paid, you’ve invested in your case. You’ve paid a lot of money for experts. You should you should probably. It’s probably a good idea when you’re starting out with an expert firm. Are you got, you know, to ask the question, are you going to be accessible? I want to put our economist in touch with you. I want to put our medical doctor in touch with you. If the expert says no, I’m writing my report and I’m heading for the hills. You know, you might want to rethink using that expert. And of course, you know what? I’ve. I think what I’ve tried to convey is also with these larger expert firms, you know, you can decide whether you’re comfortable having all of your experts out of one outfit, you know, does does the firm that you select, do they have a medical expert or nurses on staff? Do they have vocational experts, life care planning experts and economists? You know, so whether whether you go with one firm that has multiple types of professionals from multiple disciplines, you know, make sure I would say when an attorney, I know that an attorney is a very proficient litigator, when the attorney provides me with all of the material that that’s requested and then says, once you’ve rendered your report or while you’re rendering, rendering your report, this is doctor so and so. This is the medical expert, this is the economist. They are willing to get on the phone with you to answer any questions. And I think that from my point of view, that always gives me a significant boost of confidence when I’m presenting my side of the story, because I know, I know how the expert before me or the expert after me is going to testify. And I think it’s a very good sign of a well seasoned litigator.

Paul Bourgeois: And of course, as the litigator, that’s what you want, right? No surprises. You know what to expect. And by selecting the right experts and doing your due diligence and identifying those experts. Yeah, we can avoid those headaches. And anything to add here, Chris?

Speaker4: So you know, just to echo, you know, what everybody else is saying you know. Yes, definitely. You know, don’t be afraid to ask. And don’t be afraid to pick up the phone. You know, I think is at the end of it. And also to, you know, if you are engaging with, with an expert and I get this all the time, which is why I wanted to say it is sometimes I’ll get contacted, you know, for an economic report, and then I will inform, you know, that attorney that I can also provide? You know, a vocational and life care planning opinion as well if needed. And sometimes that is helpful because then they’re saving, you know, 1020 K on on having to, you know, hand in, you know, 1020 K in terms of billing and billable time. You know, you’re able to be more efficient if it’s all done under one umbrella. So or not one umbrella, but one, you know, person so that that is out there. I just wanted to say so.

Dan Wolstein: And you also don’t have to coordinate between going to multiple expert offices to. Yeah. So that that makes it a lot easier on the attorney as well.

Paul Bourgeois: To be sure, having to coordinate with just one office is a benefit on many levels. And that said, we’re at the end of the presentation today. And yeah, just a couple of final takeaways here. You know, hopefully we’ve been clear about how damages experts can elevate your case and really add value to, your bottom line. We’ve talked a lot today about integrating experts and how early involvement matters. We haven’t spent a ton of time on jury communication, but we’ve highlighted just the idea of an expert being a teacher and educating so that they’re fully aware of all the circumstances. And, yeah, I think our intent here is to help you kind of rethink your expert strategy, give you some food for thought and considering your next personal injury case or marital case, what have you. So that you can maximize the outcomes. What else would you add here, Dan and Chris? In conclusion.

Dan Wolstein: Choose the experts that are team friendly. Those that work well with others, those that are willing to get on the phone. Those that are willing to discuss your case with you before you’ve retained them during the report writing process afterwards. You know, it’s I think, as professionals, the onus is on us to be collaborative, to put together something that’s kind of cobbles together a multidisciplinary approach. Right? Our foundation comes from the the material that. You know, maybe outside of our skill set like medical determinations and then also our output and final product goes to those that come after us in the chaining process. But I think your expert, if he or she takes the job very seriously, will be willing to address evaluation questions, hypothetical questions regarding scenarios. It’s it is about being objective and dispassionate in addressing these issues. But, you know, I think I also think that at the same time, it it is the U. As retaining council are allowed to pose questions, evaluation questions to your experts so that they can answer it. Anything.

Paul Bourgeois: In conclusion, Chris, before we wrap up and I got a few minutes for questions.

Speaker4: Good job guys.

Paul Bourgeois: A job well done across the board and we appreciate everyone’s time. And joining us today to to talk about you know, our roles as expert damage witnesses and sharing with you some of the more important points we think, and considering using experts for your cases. So just by way of reminder, I’m Doctor Paul Bourgeois. This is Doctor Dan Wolstein. This is Mr. Christopher Skerritt, and we are vocational experts, life care planners and economists from Kincaid Wolstein. Anything else to add, Dan or Chris, as we wrap this up.

Dan Wolstein: No, I really enjoyed making the presentation. Hopefully you enjoyed some of the war stories and you know our office is based out of Hackensack, new Jersey, but we have a pretty significant presence on the eastern seaboard. So we’re always happy to discuss case specifics, if ever you should feel so inclined to get in touch with our office.

Paul Bourgeois: And just a big thank you to Michael for extending the opportunity to to share a bit about our work with all of you. And we appreciate your time today. And thank you again.