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Author: Martin A. Ginsburg RN | The Law Offices of David T. Robinson

I see a pretty fair number of requests for recommendations for experts in this field or that in discussion groups and hear quite a few discussions at seminars on the topic. I have to admit that this initially took me by surprise. Until, of course, the instructors at Meredith and the members of NCAJ started to explain the Rules of Evidence and Rules of Civil Procedure (the Rules) to me. That helped me to look over my thoughts on the process and wonder what could make it easier.

Because of my background, some folks might think I have a list of healthcare and medical practitioners at the ready to offer up as opinion experts in a variety of fields.  In fact, I don't keep such a list for several reasons, including the Rules. Another is far simpler to explain quickly - if each case is different because of the way the law applies and must be fully thoroughly investigated as though the investigator has never heard of the topic before; what makes the healthcare, medicine, or science any different? Who better to spur your investigative interests and curiosity: a new set of eyes that prompt you to ask more questions and investigate more deeply, or a comfortable partner with whom you've worked many times?

One attorney I've spoken with recently shared a preference for using "new" experts whenever possible. While laudable, I understand the reticence of many in taking that path, as it can be calendar killing. I hope this article will help explain the benefits of using new experts whenever possible as well as demonstrate that these experts are not as difficult to find and engage as many might think.

Let's begin with finding. There are a number of schools of thought and for brevity's sake we'll dispose out of hand with selection of internal or outsourced searches and presume internal personnel do all your searching. Beginning with that premise, while many recommend the long way round, I suggest a slightly more direct route.

First and foremost, the field of expertise must be determined. This is the hardest part of the entire process from both an investigative and a litigation perspective. Your selection will be your lead investigator and must qualify under the Rules. While this may seem daunting, don't fret - searching in the right places will yield either the right expert or an excellent recommendation to the right expert. Still, as time ticks away on the SOL, it's important to not shoot blind. Identify your preliminary theory of the case. The breach you identify had to have been in the purview of some person trained or educated in the performance of the task in question. That's your first hurdle. Find literature on the topic and at least become minimally schooled in its application. This preliminary investigation is important for a few reasons. You may learn there is no duty, or breach, or that the duty lay elsewhere or requires more expertise than you initially believed to be the case, essentially laying out for the advocate what needs to be done to prove your point.

Now that the blindfold is off, you're ready to take aim. Every field of expertise must be taught by someone, to someone else, either in a formal educational setting (the easiest searches) or the trade educational process of apprenticeship (more of a challenge). The overarching point being that someone must be teaching it if it's an established field of expertise. Many in the field of expert location recommend finding the authors of research to identify experts. That's sound advice if you don't live within 200 or so miles of three major universities and their affiliates where such authors work every day. Reach out to faculty of universities; they have all published peer-reviewed articles in their field, they are familiar with research and writing, they practice their specialty (or its teaching) more than 50% of their professional lives, and most importantly to advocates, they are teachers. Need somebody to teach a jury or judge about an arcane subject? Nice part about these folks is that if you've gone to the wrong expert, guess who knows plenty of the right people?

Vetting is the touchiest part of the process and requires the greatest effort. This is the part that always concerns me in expert searches. Think of opposing counsel's most recent "frequent flyer" expert; or your own, for that matter. Did you verify every credential? Did you verify every scholastic claim as to schools attended, grades earned, degrees conferred, dates of attendance? Did you search for all testimony, reports, engagements as an expert, or authored papers or research? Did you search USPTO for patent materials (this one is pretty cool and goes to the heart of an argument in 2000 where the attorney didn't find out until getting ready to stand up to cross examine an expert that the witness had actually authored a patent application on the topic conflicting with his testimony), how about personal litigation or criminal history, social media, or anything else?

These questions are not only important to ask opposing witnesses but, I believe, even more important to ask your own witnesses. There are a number of high quality investigative services that will provide the depth of information necessary to ensure your witness will not be successfully challenged and increase your chances for success when challenging a defense expert. These services offer "packaged" or "a la carte" reports per the preference of the investigator. I would recommend that only after equivalence of quality and depth of information has been assured, cost become a decision driver in these situations; if the a la carte information is of equivalent quality and as detailed as the packaged but less expensive, take the less expensive option. Just remember that quality is the first deciding point, depth the second and then, all other things being equal, price.

Thorough coverage of this topic would require a series to hit each highlight. I hope this brief overview helps to guide you to a more "user-friendly" world of expert location and vetting.

In May 2017, Business Insider published an article entitled "Stress in the Office is Contagious - Here's How to Stop it From Spreading." The article's focus was on the idea that there is a stress "sweet spot," an essential balance of just the right amount of stress to actually enhance productivity and create an effective and efficient working environment. It gave typical, and effective remedies for reducing too much stress which can lead to burnout. The article included focusing on leaders (bosses) and incivility. While I agree that these remedies are "no-brainers," and can absolutely lead to a less-stressful working environment, I decided to focus this article not on how outsiders can help you reduce stress, but how YOU can reduce the amount of stress inevitably resting upon your shoulders while at work.

While I'm writing this article about how to reduce stress in the office, I can't help but add a little irony, and tell you that at this very moment I am kid-wrangling, among other things: keeping a 6- and almost 4-year-old from screaming and fighting over what's "mine" while I'm writing a new sentence in between "Mommy, can you help me???" My sweet, but anxious dog is scratching at my arm because she knows it is dinner time and she has not been fed yet. I am also keeping track of my little side biz... yes, I sell Rodan and Fields, and am anxiously awaiting one of my business partners to hit a new promotion. I'm cooking dinner and don't you know it, enjoying a big glass of red wine. But, I can't drink more than one glass, because I am waking up at 5:00am to run 10 miles... I'm also a marathon runner. I'm solo tonight while my husband is hard at work as a Sergeant with the Sheriff's Department. I'm not telling you all of this for a pat on the back, but because I suspect that many of you are in the same boat, and that work is only one small part of what makes up your stressful, yet incredibly wonderful lives.

So, how do we manage stress at work? I say "manage," and not "reduce," because we all know there are times when the stress simply cannot be reduced. How do we keep stress at that "sweet spot?" We work on crazy deadlines, with demanding clients and lawyers, and we want to be the best we can be. Being a master at organized chaos is essential to paralegal life. When a co-worker comes to me to vent about how much work they have to do, or how behind they are on their work, one of my responses is always to organize, prioritize, be a master multi-tasker, and make time for a brain break somewhere in your day.

Organize. This is so personal, and works different ways for different personalities. I have a co-worker 

whose office is always clean by the end of the day. I have another whose office always looks like a complete mess. They are both exceptional paralegals. Mine, on the other hand, is a good mix of them both. I have papers scattered everywhere, and I have organized piles and files. We all three have one major concept in common: we know where everything is. Don't increase your stress by not knowing where a document is located in your office. Create a space that allows you ease of access, and organize your files and your desk in such a way that you can easily find what you need. For example, I created a spreadsheet called "Case Summary," with fields for information such as: date of accident, Statute of Limitations, total medical bills, injuries, treatment status, telephone conversations with client, and telephone conversations with adjusters. I try my best to keep this complied list of important information updated so that when a client calls to tell me they just went to see a new doctor, I can add it to my spreadsheet, and make myself a note to request those records and bills. Also, when an adjuster calls me to check on the status of a case, I can quickly reference that spreadsheet to inform them of the latest updates on the case. I can do all of that from my computer, without pulling the actual paper file. Some other paralegals may prefer to keep that information in the paper file. The point is to decide how you want to organize and use your work station, where all of your important information is easily accessible, and you aren't stressing out over finding documents.

Multi-Tasking... is an art... or a death sentence. This profession acutely relies upon our ability to change gears in an instant. Never fails... I'm in the middle of reading medical records and summarizing them in a demand letter to the insurance company and I receive a phone call from a client who is panicking because the insurance company just called to tell them they're cutting off their rental tomorrow, and their car repairs aren't completed yet. So, I have to stop what I'm doing to handle that situation. Then, the mail comes, a new client calls, a client comes in unexpectedly to drop off a bill to me and wants to chat, and 2 hours later, I'm back to reading those medical records. Be adaptable to transitioning into different areas of our job. That takes practice, and plenty of patience. Be willing to change gears, and have the patience and understanding that succumbing to your own pressures of accomplishing a task in one sitting will only increase your stress. And maybe most importantly, stay focused on the task at hand. The death sentence comes when you lose track of where you are... and can't pick up where you left off.

Chair

Jenny Surmons, Comerford & Britt, LLP

250 West First Street Suite 200
Winston Salem, NC 27101 

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