I suggested a few days ago scheduling a session in an APTLA conference on cost control in civil litigation involving experts. (Ref. 1)  Such a session might include a keynote speaker.  Ideally, one each from the legal and expert communities for such an important topic.

Tom Vesper from New Jersey is speaking on “quantifying the priceless” at the conference this November in Halifax in keeping with the theme of the meeting.  I’m sure he would have suggestions for a speaker on cost control, from the legal community at least.

I know it would be easy to find a speaker from the expert community in the U.S.  Likely in Canada too.  An Expert Directory by SEAK, Inc. identifies experts in about 1,600 different fields in the U.S. and Canada.  A number are in a financial specialty of one kind or another, including assessing and calculating damages.  I’m sure any one of them would have something worthwhile to contribute – a lot of ideas, including practical ones, on how to control the cost of litigation.  I identified some ways of doing this earlier.

The experts are retained by the legal profession and insurance firms in the U.S. and charge a fee for their services like experts do in Atlantic Canada.

For certain, it would be good to have at least one keynote speaker – if APTLA recognizes the benefit of a session on cost control.  Get a dialogue going on the best way of wrestling the elephant in the room to the ground and controlling the cost of litigation.  A keynote speaker from the expert community would beef up the dialogue.

References

1. Cost Control in Civil Litigation.  Posted September 8, 2016

I would like to suggest that the Atlantic Provinces Trial Lawyers Association (APTLA) hold a conference on cost control in civil litigation as it involves scientific and engineering experts.  At the very least, include a session in one of the conferences held annually in the Atlantic provinces.

Confront the elephant in the room – the fees that an expert must charge to determine the cause of an injury or failure in the built environment and how this impacts the cost of litigation, including the worth of the file.

I thought this when I looked at the program for the conference scheduled for Halifax this November, “It’s all Wrongful: Death, Dismissal, Conviction & More”.  There’s a session on technical issues but nothing to indicate if this refers to scientific and engineering matters or just practical issues to do with all that is wrongful.

A description of the conference mentions “damages”, “a lawyer’s guide to calculation of future losses” and “quantifying the priceless” suggests that money is an important theme in the conference.  It would be good if the calculating and quantifying considered an expert’s fees – money too, with input from an expert on these.  An expert’s fees can whittle away at the award for damages – particularly in the smaller cases, if costs are not managed properly.

The Ontario Advocates Society recognize affluent and less affluent cases.  Presumably, big cases with big damages and smaller ones with less.  Most of the civil litigation cases involving the built environment in Atlantic Canada are small, not big, and not always well funded.  Yet most require a thorough forensic engineering investigation to ensure a reliable opinion – with attendant expert fees, some fairly substantial.

(An expert’s fees are comparable to a lawyer’s fees in Atlantic Canada because we need about the same number of years of education and experience to do our work.  Also because we assume similar levels of responsibility to the justice system in what we do and report.  At the end of the day, many cases don’t go forward properly until the expert’s work is done)

The cost of civil litigation can be managed.  I’ve identified some methods that are – if you don’t mind, no brainers.  Addressing when an expert is retained and how are two.

There are other methods that need dialogue between lawyers and experts to implement properly.

Or dialogue about whether to implement some methods at all.  Like managing investigation of all the technical issues identified by the lawyer based on his/her knowledge of the legal issues. Plus the issues identified by the expert based on his knowledge of what needs to be done to investigate the problem.  A lot of technical issues might be on the table after lawyer and expert take their turns identifying these.

Do we investigate all the technical issues or just some or just one?  How few can we investigate – to keep costs down – and still meet both the standards of the legal profession and the expert’s profession?

These civil litigation cost management methods and questions need dialogue not just blogging.  Blogging can bring the elephant into focus but lawyers and experts talking together will wrestle him into submission – and better cost control of civil litigation.  We could begin to do this together in an APTLA conference session.