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Presented to the NARPPS National Conference Dallas, Texas April 14, 2000 Robert H. Taylor, M.A.,C.R.C.,C.D.M.S.,C.P.C.,C.L.C.P. Vocational Diagnostics, Inc. Phoenix, AZ There are now more opportunities than ever for a rehabilitation professional to provide services in the forensic setting. It seems that with each passing day insurance companies and attorneys are making use of the services of vocational rehabilitation counselors, registered nurses, and life care planners in the evaluation of cases involving employability and future care needs and the economic damages that arise from personal injury, medical malpractice, and cases involving wrongful termination or other labor-related issues. This paper and presentation will help address the ever increasing opportunities for rehabilitation professionals in a forensic setting and the day-to-day business issues which can affect one's practice. So You Want to Be an Expert? The first question that must be answered by anyone choosing to become involved in forensic rehabilitation is, "Why do I want to do this?" For many of us, myself included, entry to the field of rehabilitation has been through more traditional means. Gaining experience in working with the disabled and assisting such individuals to return to work or enhance their independent functioning provides the basic foundation for our expertise. Ultimately, we probably found our way into the world of insurance rehabilitation, or, as it is viewed in the business sense, "rehabilitation for profit." This term is not intended to be derogatory as the traditional method of rehabilitation service delivery is in a non-profit setting. The world of insurance rehabilitation, or rehabilitation in the private sector, becomes attractive to those having worked in the non-profit sector in great part due to the greater opportunities for economic reward. Working in insurance rehabilitation or for a provider of rehabilitation services to recipients of benefits through a disability compensation system usually opens new eyes for the rehabilitation professional. Usually one's first experience with an attorney as a rehabilitation professional occurs when contact is made with an attorney representing an injured worker in a worker's compensation case. As one gains more experience in this forum, one may become involved in a quasi-legal proceeding such as an administrative hearing to determine one's entitlement to future benefits or to help resolve a dispute that has arisen somewhere in the rehabilitation process. Ultimately, through good, professional work, the ability to gain the confidence of attorneys representing both injured workers or insurance carriers may result in the opportunity to evaluate a case that is more entrenched in the legal system. This becomes the rehabilitation professional's introduction to forensic rehabilitation. Let's not kid ourselves, though. Not every rehabilitation professional wants to be a forensic expert. Likewise, there are many forensic rehabilitation experts who, when venturing into the field of forensics, soon find that all is not what they bargained for. Personally, I respect this rehabilitation professional more than the forensic expert who compromises methods of practice and ethics and, as a result, is labeled as being intellectually dishonest or someone who lacks integrity. More on this later. Some of the personal characteristics necessary to be an effective forensic rehabilitation expert are:
The first time a forensic rehabilitation expert is attacked in a deposition, both personally and professionally, can be a mind and body-numbing experience. One may stagger out of the deposition room and wonder, "Why did I agree to do this?" After one or two depositions, the ranks of the forensic rehabilitation experts start to thin as one may realize that they may have no desire to go through the remainder of their professional life being attacked by attorneys or being placed in a setting where they have to fend off these "crocodiles," lest they become their evening meal. To be sure, a good expert must not only know how to testify, and well, but how to cope with the battlefield in which they have been thrust as a soldier in the warfare that is ongoing between the parties. This leads us to the last point. While we may be used to handling multiple cases simultaneously and working within the confines of a disability compensation system or systems, one has not lived until, as a forensic rehabilitation expert, they realize that five cases are running on the same calendar with discovery cutoffs on the same date, all within days of each other, reports are due, research needs to be done, and depositions in other cases have been scheduled that must be carried out in order to meet other deadlines. "Burning the midnight oil" then takes on new meaning. Combine this with the experience of having to explain to attorneys, unfamiliar with what you really do for a living, what impact these reports will have on their case and your life takes on new meaning. Okay, so you haven't been scared off yet. Good! How do you begin to get your forensic rehabilitation practice off the ground? New Practice "Musts":
The key to any successful rehabilitation practice, including forensic rehabilitation, is time spent and success in, marketing. Typical entities to be identified for marketing efforts are:
Good sales skills are essential for a forensic rehabilitation professional. Not only do you need to sell the potential referral source on the reasons to retain you as opposed to someone else, but you will also ultimately have to "sell" your opinions to the triers of fact. These entities can be a judge, jury, hearing officer, mediator, or arbitrator, depending on the particular setting at the time. When marketing, know what you are going to say and to whom.
When getting a new forensic rehabilitation referral, attention should be paid to the following key issues:
Get as much payment in advance as possible! This assists in cash flow, cuts down on accounts receivable, and is a key predictor of the solvency and professionalism of the referral source. Do not be shy about asking for retainers! Deposition Checklist: At some point, it will be necessary for the forensic rehabilitation professional to give deposition testimony. When this is necessary, you will either be served with a Subpoena Duces Tecum mandating your presence at a pre-determined time and location or, the attorney retaining your services will advise you that the opposing attorney has requested to take your deposition and mutually-convenient scheduling will occur. What do you do, though, if you are served with a Subpoena Duces Tecum mandating your appearance at a certain date and time? R-E-S-P-E-C-T (Thank you, Aretha Franklin): In my opinion, the forensic rehabilitation professional deserves no less respect than that afforded a medical doctor, psychologist, or other professional. You have every right to have the deposition scheduled at a time and location that is convenient for you. Every Subpoena Duces Tecum provides for a period of time for protest. This is one of the key reasons for having personal/ corporate counsel. It may be necessary to file a Motion for a Protective Order, which is something that your attorney can do. Remember, the attorney retaining your services is not your attorney; his obligation is to his client and not to you. My policy, when scheduling a deposition, is to send a deposition pre-payment letter which sets forth the terms of the deposition. This will include the amount of time set aside, location, fee for the deposition, and payment terms, if payment other than that received in advance is due after the deposition. The scheduling of a deposition is seldom a "life or death" issue. In other words, with very rare exceptions, there is usually never a reason that a deposition must be scheduled on one certain date at a certain time. If you are served with a Subpoena Duces Tecum it is usually for a time and location that favors the party taking your deposition. Always strive to have your deposition taken at a time that is convenient for all parties. There are differing opinions as to the best location for a deposition. Some rehabilitation professionals do not like to be deposed at their office as they may not have an appropriate conference room, or they do not want to be at the mercy of the attorney taking their deposition who may make obnoxious requests for materials and references that may have been cited in the report. At times there may be good reasons for this, however, in my opinion, if the rehabilitation professional is prepared and organized, it is usually more convenient to hold the deposition in a setting in which they are familiar, such as their office. If necessary to travel out of one's office for the deposition, the deposition pre-payment letter should set forth the amount of time necessary for travel as well as any charges for mileage that might result. In certain jurisdictions, the party taking the deposition may not be responsible for payment of travel expenses. Discuss this with the attorney retaining you so that the proper steps can be taken to fully compensate you for your time. Trial Testimony: The scheduling of trial testimony can be one of the most frustrating areas of practice for a forensic rehabilitation professional. The speed by which trials move along oftentimes cannot be predicted. Flexibility is the key word when scheduling trial testimony. It is also imperative to make arrangements for prepayment of trial testimony in the same manner as deposition testimony. Because of the uncertainties of scheduling trial testimony, though, it is always wise to build in a greater number of hours to the pre-payment calculation than might be necessary otherwise. My policy is to reimburse a referral source for unused time paid for in advance if the time actually utilized is less than that initially projected. Similarly, any additional costs for trial time will be billed after the trial is over. General Practice Issues:
I have learned over the years that it is critical to literally pummel a referral source with invoices for services rendered if one expects to be paid in a timely manner. There are many reasons for this. When working on a defense case, it is not uncommon these days for defense counsel to submit their bills on a quarterly basis to the insurance carrier responsible for payment. After all, if they get paid every three months, you should too, right? WRONG!!! Your retention agreement should spell out the terms of your retention AND payment. I send bills out to lawyers on the 15th and 30th of every month. This serves as a stimulus for the attorney to get the bill off his desk and onto the desk of the actual payor. If the attorney is late in making payment, don't be shy about charging interest, either, as spelled out in your retention agreement. There may be short periods of time when cash flow is tight and you might not want to hit your credit line for cash to continue operating your business. Consider giving your accounts a discount on their bill, say, 5% if paid within 10 days. This will always be attractive to plaintiff attorneys you might be working for at the time. It probably will do no good in defense cases, simply due to the increased time it typically takes for an insurance carrier to pay your bill. There are some defense attorneys, though, who are responsible for payment of experts directly, so this discount, too, will be of interest to them. The discount from fees will be less than the interest you will have to pay on your line of credit. Although the interest will be tax-deductible, why spend more money than you have to? Collections: At some point it is going to become necessary to collect fees with the assistance of either your personal/corporate attorney or a collection agency. Stick to the provisions of your retention agreement. I always stamp delinquent invoices with something like, "Final Notice Before Collection," before I ship an invoice off to our corporate attorney for further handling. There is nothing like an attorney sending a letter threatening legal action to another attorney to get a response. It usually is quite effective. This is only one of the reasons for having your own personal/corporate attorney. If you think taking such action might discourage future referrals from this attorney, ask yourself, "Do I really want to work for someone who doesn't pay my bills?" In certain jurisdictions, the State Bar Association may be effective in suggesting to an attorney that your bill be paid. I, personally, have never found this approach to be effective. The response I have gotten from these bodies, in a number of states, is that I have to take the same action that I would take against any other entity to collect a debt. As all State Bar Associations have their own policies, though, this should remain an option. It should be noted, though, that there is nothing that can compare to filing a Bar complaint against an attorney. This would be the same as filing a complaint with the CRCC or any other of the credentialing bodies that we are accountable to for our professional conduct. It may become necessary in some cases. Be prepared for a fight if you choose to take this approach. Advertising and the Use of Expert Witness Services: I am not a proponent of globally advertising for expert witness services. The decision to advertise, though, has to be one made by the forensic rehabilitation professional based on his personal level of comfort and, perhaps more important, the budget he has for advertising. If it costs $1,000 a year to advertise in some publication or with a service, that expense should be covered by the fees generated in the first referral received via the ad. There are no hard and fast rules, though, which should dictate whether the forensic rehabilitation professional advertises or not. If you do advertise, be prepared for your ad to be presented to you at trial as an attempt to classify you as a "hired-gun." The content of your ad is more important than the ad, itself! Never broadcast what you can't deliver and never advertise something you can't do or pose as someone you are not. Attorneys love expert ads as a means of impeachment and they will not hesitate to use them against you. So, if you choose to advertise your services, do so wisely and be prepared for both the positives and negatives of doing so. Expert witness services seem to be popping up at an alarming rate. Some charge for their services, while others do not. As with any advertising, I caution the forensic rehabilitation professional to consider these options carefully. Consider the return on investment if there is a fee involved. Try it out for a period of time if you like the presentation. Throw the materials away if they seem to be too good to be true. With the use of the Internet, commitment to a website of your own will probably make you equally accessible to an attorney seeking an expert, compared to the visibility that a referral service will claim to give you. As with any advertising, I see no hard and fast rules to either encourage or discourage the use of referral services as a means of getting referrals. Your pocketbook and personal preferences in this area will ultimately be your guide. The Bottom Line: Operating a practice as a forensic rehabilitation expert will pose issues most rehabilitation professionals will not have faced in their past. Being an expert is not for everyone. If one chooses to be an expert, they need to have access to other experts to help them do the best job they can. Don't be shy in seeking help from others with more experience. As long as there is litigation, there will be a need for forensic experts. As there is evolution in the field, though, we must be aware of areas of change so our practices can be managed profitably and professionally.
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