If you are planning on hiring an expert and you are on such a tight budget that you only want a verbal opinion, you should probably ask your boss for some overtime hours. It is always nice to find out what the expert has to offer in the way of support for an opinion. But, what happens if the issue you needed the expert for ends up being a bigger deal than you thought?
- What do you do without anything in writing?
- Will you expect the expert to have thoroughly documented her opinions and reasoning?
- Do you even remember who your expert was?
This very subject came up today in my practice. My attorney/client requested a verbal opinion only as to the authenticity of a signature. I am not sure why. He may have said that his client is on a tight budget. Or, it may have been that my opinion was not very helpful in bringing his client’s case. Either way, he chose not to get it in writing.
Fast forward to a year later, I am asked to testify as to my findings in deposition. Without a report, I must rely on my notes as a reminder of the supporting evidence for my opinion. Luckily, I did a pretty good job of documenting what evidence was useful and what I needed for a “stronger” opinion. I testified that my opinion leaned weakly in the direction away from my client and toward the opposition.
Well, it wasn’t long before I received a frantic call from my attorney/client asking how my opinion could have changed…At least that was his perception.
You see, when you hire an attorney, you authorize him or her to be your advocate. Being human, he may talk to people and remember the parts that help while overlooking the shortcomings of what he hears. If my attorney/client had had a written reporting of my findings and the reasoning behind them, he would likely have removed my name from the list of witnesses and thus avoided the embarrassment of enhancing the case for opposing counsel. Instead, he relied only on our 10-minute conversation discussing how my opinion was not enough to reach the level of certainty needed in civil court and the reasons why I could not identify the handwriting. In the process, he completely overlooked that my opinion was headed in the wrong direction.
Now do you see why you should consider working a little overtime so you can pay for a report?
I am making it a practice to always provide a report not only for my client, but also for my own well-being and confidence in the event that I need to testify to a case that I examined years ago.
(Note: this blog article was written to address individuals, but was really meant to remind attorneys about the pitfalls of relying on a verbal opinion)