In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a premises liability expert witness regarding setting parameters:
When attorneys call, experts must determine from a brief description if the case falls within our span of competence and is ethically feasible. Frequently, attorneys ask us to make a preliminary assessment. That’s not readily doable–or prudent. Attorneys may ask, “Do you think I have a cause of action, here?” Well, perhaps; but no expert should offer an opinion at this stage, nor should we hear any confidential information. For me, the best starting point in determining the merit of a case is reading the petition or complaint (if it has been filed) and, if available, the answer to it. But some attorneys seem reluctant to forward the complaint, let alone pay an expert to review it, who then might pass on the case.
Some advance work can lower this hurdle. Before calling potential experts, attorneys should check their credentials and references to verify that they are both competent in their fields and, above all, have a reputation for integrity. Then, if an attorney wants an expert’s early reading as to the case’s strengths and weaknesses, he or she should be willing to pay a reasonable fee for this. If the expert’s screening suggests a weak case, the attorney cuts losses; if the expert feels he or she can espouse a supportive opinion, the attorney can confidently retain the expert. Either way, the nominal investment is justified.
There is a fine line for an expert between saying enough to get the job and offering too much. Before I learned to request a retainer, a Michigan attorney asked my preliminary assessment of a potential case by telephone. After receiving assurance that he would compensate me for early research and feedback, I found and transmitted to him a provision in state law that could make his case. End of story: he never responded to e-mails or phone calls. No payment, but lesson learned.
Submitting credentials is de rigueur in bidding for retention, but when I forward credentials and receive nary a word in response, I wonder. I hesitate to suggest that any attorney might lack scruples, but apart from the lack of courtesy, might the attorney have designated me as his expert without informing me? This happens, and it shouldn’t.
Once attorneys retain experts, they should specifically delineate the scope of services expected. Where they do not , it’s up to experts to clarify expectations before undertaking unwanted work. The experts might describe his or her typical approach: “I do comprehensive research and write detailed reports, including case precedent references.” If attorneys want narrower parameters, this is their cue to define them.