Thursday, August 22, 2013

Swimming Pool Expert Witness - What to expect

What to expect when hiring a Swimming Pool Expert Witness for Litigation - You're going to Court.

When an attorney hires the expert

Sometimes, a law firm retains the services of an expert witness.  This is a strategic move that is exercised when the case involves a lot of unknowns.  If there exists uncertainty as to the validity of a claim or if the expert may reveal liability on the part of the client, this is usually a smart move.

By having a law firm hire the expert witness directly, anything generated by the expert witness becomes the "work product of the attorney" and is usually not subject to discovery.  

A word of caution.  In this instance, a smart opposing attorney will know that not every work product of the expert witness was disclosed.  They will spend a lot of time and effort, questioning the experts findings, opinions and conclusions.  The expert must answer these probing questions under oath.  Items that were not disclosed may be revealed anyway.

Truly Objective Experts

Sometimes the client's case cannot be supported by the expert witness's analysis.  The expert witness must "tell it like it is," regardless if the outcome is positive.  Do not expect an expert witness to lie or twist the truth, merely because you are paying the bills.  

Expect the cards to fall where they may.  This is another reason why having a law firm hire the experts may be a good idea.  Information detrimental to the client's case would not have to be revealed.

Expert Witness Referral Firm

Do you really need the services of an expert witness referral firm?  Probably not.  Some of these firms maintain control of the invoicing for the expert witness's services.  They add a surcharge to the expert's invoices before forwarding their own invoice for payment.  If your attorney has hired the expert witness, expect the law firm to also add a mark-up to the invoice.  Padding on top of padding!

Other referral services charge the expert witness a "finders fee" for each case referral.  The expert is going to recover this fee somehow - either through inflated fees, surcharges, overhead or other hidden expense.

With the advent of internet search engines, it is very easy to locate, research the background of and directly hire your own expert witness.  After all, isn't that how you found this blog?

Open Book or Case Initiation Fee

Most expert witnesses charge an "open book" or "case initiation" fee.  This fee is the cost to hire and lock-up the expert as your expert, so that the opposing party cannot hire them.  Some smart law firms hire every decent expert witness that is available, merely to prevent the opposing party from hiring them.  After receipt of this payment, the expert witness is said to have been retained.

This also gives you the right to name those experts as your experts, whether you intend on using their services or not.  Sometimes, cases settle just because one side has retained the best experts available.

This fee is not applied to any work product.  It is only for the right to name that expert as yours.


Expect a contract that requires a retainer (deposit) against which work is invoiced.  Just like an attorney, an expert witness bills by the hour for everything that they do for your case.

The worst cases drag on for years, and the expert is entitled to be paid as their work progresses.  Periodically recharging a retainer and billing against that deposit, ensures that the expert is paid promptly.

Case Materials

The expert is required to read every document that is provided to them.  Oftentimes, many duplicates of the same documents are submitted from different sources.  

Duplicate documents must still be reviewed to ensure that they are exactly the same.  Everything must be cataloged and archived for later retrieval.  Binders of materials are assembled and tabbed as to their origin or source.  Digital photographs must be printed and assembled into an album.

Project Evaluation

The expert may require the support of other specialized experts to determine if standards and specifications were adhered to.  These experts will be an additional charge.

Such specialized experts may include a material testing laboratory, forensic materials scientist, soils engineer or geologist or structural engineer.  These specialists can assist in determining if various aspects of the project were sufficient for their designed purpose.

Standby and Reimbursables

The time the expert spends on your case, is time that they cannot bill another client or project.  This is called "opportunity cost."  The expert has lost the opportunity to sell that time or resources to another client.  Time spent traveling to and from site inspections, airline flights and time spent sitting in court rooms waiting are examples of lost opportunities.  The expert cannot be working on other projects - it is unrecoverable time.

"Standby time" is when the expert is required to be available for depositions, court hearings or teleconferences on a moments notice.  This usually requires that they remain near a phone and be committed to having a minimum response time.  Since they cannot go about their normal course of business unfettered and without restriction, there is usually an hourly fee associated with "being on stand-by."  You have consumed their ability to focus 100% on another project.  Because the expert can do "busy work" while on standby, standby time is usually billed at a reduced hourly rate.  While not common, standby time does occur on occasion.

Expect to be charged for overhead, administrative and reimbursable expenses.  Airline tickets, hotels, meals, duplication expenses, overnight shipping, photo printing, CD/DVD duplication and CAD drafting are all examples of reimbursable expenses.  Vehicle mileage is another example of a reimbursable overhead.

Administrative support, which is billed at a lower hourly rate than the expert doing it themselves, is an economical method of completing work for the client. 

Contact the author, Paolo Benedetti of Aquatic Technology Pool and Spa at: or 408-776-8220. 
Visit his website at: 
All Contents © Aquatic Technology Pool & Spa, 2013. 
No portions of this blog may be reproduced or re-posted without the expressed written consent of Aquatic Technology.

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To contact the author, Paolo Benedetti of Aquatic Technology pool and Spa, email him at: or call 408-776-8220.
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