by: Brian Tenzer, Senior Partner
In my previous Blog titled “Making the Most of a Stormy Situation,” I explained how an engineer being sent out to inspect a roof claim can make or break a case. Insurers must vett their potential experts prior to retaining them to make sure they are qualified and capable. Once a potential expert is vetted, approved and retained, it is imperative that you continue to work in tandem with your expert throughout the enitre claims and litigation process.
During the claims process, and prior to making a claims decision, a report must be scrutinized by the adjuster or examiner. Did the expert have all the information of the loss when formulating their opinion? If not, that information may be provided to the expert to incorporate it into their opinion. Even if the information has no bearing on the opinion, it is better for an expert to be able to testify that they were aware of a fact or data but it did not affect their opinion versus, they did not consider a fact or data.
If there is any weakness or ambiguity in the written report, the expert may be contacted for clarification or the expert may be challenged on the weakness or ambiguity to see if they can truly support their findings. Make sure you totally understand all aspects of a report before considering the opinion for your claims decision. One caveat on this process – any documents, notation, email, or any other tangible item prepared or received by an expert may be discoverable at some point in the litigation so it is wise to carefully scrutinize all communications with the potential expert to make sure that the communication will not harm you down the road if the claim is litigated.
During litigation, an attorney should have early interaction with a potential expert for several reasons. The lawyer may want to speak and personally meet with the expert to get an idea of how that person is going to present themselves to a jury. I often subject experts to a mock cross examination to assess their viability as a witness. Sometimes, when I ask a question that a plaintiff is sure to ask, the potential expert responds in a way that may seriously undermine the strength of the defense of the case. Under those circumstances, it is better to find out early in litigation versus a day or two before the deposition of an expert or after the case has been litigated for a significant period of time. A disconcerting response from a potential expert to a critical question does not necessarily mean the case must be settled, as it may only mean that the defense attorney has to obtain specific discovery, facts or testimony in order for the troublesome response to be negated or modified. The defense attorney and expert can also work together to make sure that the expert is apprised of any new fact, evidence and testimony iorder to determine if the new information affects the expert’s opinion in a positive or negative way. The expert may also help guide the attorney in terms of obtaining facts, evidence and testimony that will help the expert shore up their opinion. Thus, an insurer litigating a case is better off having defense counsel meet with a potential expert sooner than later, and at strategic points throughout litigation.
Hurricane Season is almost over, but the roof and property claims will continue to be filed long after November 30th. It is important that insurance companies and their experts are prepared to handle these cases in the best possible manner. Goldstein Law Group is a resource that insurers can take advantage of during this busy time. If you need help with sworn or informal statements we will waive our hourly fees and offer our services on a flat fee basis. If you need questions answered or advice on a particular matter, feel free to call our office at 954-767-8393 or email me directly at email@example.com