Articles & Information

FORENSIC REHABILITATION PRACTICE STRATEGIES
"Forensic Rehab-101"-Pre-Conference Seminar
Annual Educational Conference of the IARP Forensic Section
Orlando, FL
Robert H. Taylor M.A. C.R.C. C.D.M.S. C.P.C. C.L.C.P.
Vocational Diagnostics, Inc.
Phoenix, AZ
December 5, 2002

I. Why Be a Forensic Rehabilitation Expert?
  1. Desire to explore new practice area(s) related to training;
  2. Dissatisfaction with current area(s) of practice;
  3. Limitations and restrictions of current practice;
  4. Desire for self-employment and more independence;
  5. Ability to take risks to reap personal, professional and financial rewards.
II. What Does it Take to Be a Forensic Rehabilitation Expert?
  1. Ability to teach attorneys, judges and juries;
  2. Experience, credentials and skills to qualify as one possessing special knowledge that the general public does not possess;
  3. Ability to perform thorough, analytical evaluations, using pertinent research relative to the field of rehabilitation;
  4. Effective communication skills, including the ability to listen to questions posed;
  5. Ability to be believable;
  6. Ability to be persuasive to decision-makers and triers of fact without being an advocate;
  7. Credibility and integrity;
  8. Ability to be consistent in one's approach regardless of the retaining party.
III. Setting Up the Practice-The Essentials:
  1. Retain a personal attorney;
    1. Sole-Proprietorship vs. Limited Liability Corporation (LLC) vs. S-Corporation vs. C-Corporation;
  2. Retain a Certified Public Accountant;
  3. Cash or Credit Line to support yourself for at least 4 months;
  4. Office vs. Home Office;
IV. What Do You Intend To Do?
  1. Are you presently employed with another rehabilitation firm or just starting?
    1. If already working for a rehabilitation firm, do you hope to keep current business relationships?
    2. Be very careful about notice, working on existing cases and discussing your planned move to your own practice before you do it.
  2. Marketing - The Lifeblood of a Forensic Rehabilitation Professional
    1. What is your marketing plan?
    2. The time to have a marketing plan is NOT after you have left your current employer or started your practice;
    3. What type of cases are you planning on handling and why?
    4. How are you planning to get them?
    5. Prospecting and blueprinting: knowing who to contact and identification of the decision-makers, or, how easy it is to spin your wheels and get nowhere fast!
    6. There is ALWAYS demand for a credible forensic rehabilitation expert!
V. Attorneys - The Primary Referral Source for a Forensic Rehabilitation Professional:
  1. Plaintiff attorneys (representing the injured);
    1. A good place to focus initial marketing efforts, IF you have something to say of interest!
    2. Be ready to explain why YOU should work with them on behalf of their clients.
  2. Defense attorneys (representing the defendant);
    1. Usually tougher to get to know and more resistant to the use of damages experts than their plaintiff attorney counterparts;
    2. Many defense attorneys must focus on liability issues before being willing to consider using damages experts;
    3. Understand that the insurance company for the defendant in the lawsuit probably makes the decisions on retention and payment for experts;
  3. Balance in retention and testimony-something to strive for!
    1. Being retained equally by both plaintiffs and defendants means that you are respected by attorneys representing both sides in a lawsuit= Credibility!
    2. Prevalence in retention by either plaintiffs or defendants can give the appearance of bias in one's work, even if this is an invalid conclusion.
VI. Office Management Procedures:
  1. Systems:
    1. Logging referrals and deadlines;
    2. Case timekeeping and billing;
    3. Accounts payable;
    4. Accounts receivable;
    5. Calendaring.
  2. What's out there?
    1. Quickbooks-probably the best starting point for a sole practitioner;
    2. PCLaw and PCLaw Pro (www.pclaw.com)- more flexibility for the larger business;
    3. Omega Legal Systems-(www.omegalegal.com) - similar in flexibility and power to PCLaw;
    4. LCPStat- (www.lcp3.com) - TecSolutions, Ridgeland, MS (Randall Thomas Ph.D., C.R.C.)- multi-dimensional software for life care planning and office management.
VII. Office Management Practices:
  1. Accepting new referrals;
    1. Importance of conflict checks;
    2. What is the purpose of the referral?
    3. When is your opinion due?
    4. Is a written report necessary?
    5. Retention agreement signed?
    6. Retainer received?
    7. How much of a retainer should be requested from referral source?
    8. Should a retainer be received from every referral source on every case?
  2. Billing;
    1. How are you charging for your time on the case?
      1. Flat rate;
      2. Hourly rate:
      3. Clerical time;
      4. Long-distance phone charges;
      5. Mileage.
    1. If hourly rates are being charged, how much is fair?
      1. Experience and expertise of the expert for the assignment.
  3. Frequency of Billing;
    1. Every 30 days?
    2. Every 15 days?
    3. Conclusion of case?
  4. Terms of Billing;
    1. Net 30 days;
    2. Net 20 days;
    3. On receipt;
  5. Tracking Receivables;
    1. Past Due Invoices
    2. Get that stamp that says, "Delinquent. Last Notice Before Collection"
  6. What to do with the Late or Delinquent Account;
    1. The need for Small Claims Court;
    2. The need for corporate counsel to deal with delinquent billing issues;
    3. Regardless of how cooperative and proactive you are, you will need to collect delinquent fees;
  7. Don't be Hesitant to Insist on Payment;
    1. Do you really want to have a relationship with a referral source that does not pay your bills?
    2. Failure to insist on timely payment now = significantly greater problems later on;
  8. Prepayment for Deposition Testimony;
    1. Absolutely essential! See deposition pre-payment letter for example;
  9. Prepayment for Trial Testimony;
    1. Necessary in all cases?
  10. Adopt the "Aretha Franklin Rule" (R-E-S-P-E-C-T!)
VIII. Need to Know Practice Issues:
  1. Rules of Civil Procedure in State Courts in which You Will Practice;
  2. Federal Rules of Evidence;
    1. Rule 702. Testimony by Experts
      "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."
  3. Federal Rules of Civil Procedure;
    1. Rule 26. General Provisions Governing Discovery; duty of Disclosure
      "Except as otherwise stipulated or directed by this court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involved giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness; including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years."
  4. Relevant Case Law Pertaining to Damages Experts;
    1. Federal Court:
      1. Daubert vs. Merrell-Dow Pharmaceuticals;
      2. Kumho Tire vs. Carmichael;
      3. Frye vs. United States
      4. Other cases that address admissibility of expert witness testimony.
    2. State Court;
      1. Does the state where you practice or where the case will be tried apply the Frye or Daubert Standard;
      2. Be aware of any other controlling case law that is applicable to the case you are working on. This is especially true in worker's compensation cases where certain information may need to be obtained to meet the burden of proof and presented in a manner established by statute or case law.
IX. Ethical Practice Issues:
  1. Be consistent in your approach to the case regardless of whether a plaintiff or defendant retains you;
    1. Your reports will become known to opposing experts and attorneys;
    2. Any deviation in your approach to a case based on the side retaining you will brand you as a biased expert;
    3. Litigation is hard enough anyway; do you really want to be the focus of attention because you appear to be biased?
  2. Know when to say "No!"
  3. Be aware of potential or actual case conflicts;
  4. Be wary of your case opinions. Do they pass "the smell test?"
  5. Never tell a referral source what they want to hear; tell them what they need to hear;
  6. The willingness of an expert to take a stand will result in respect;
  7. Once an expert's integrity is compromised or lost, it cannot be regained;
  8. Don't expect to please everyone; it can't be done!
  9. Be the best expert you can be!

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