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Putting the “Expert” in Witness

By using your repair knowledge in the courtroom, you can make upward of $150 an hour – and educate and protect consumers at the same time.

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Author Patrick Yurek is the owner and president of Collision Consulting LLC (focusing primarily on DV appraisals – www.CollisionConsulting.com) and also owner of Arizona Collision Center in Tempe, Ariz. He has 35 years of industry experience and has held every position from sweeper to owner. Among his credits are several PPG certifications and GM technical certificates. He’s past president of the GM Service and Parts Managers Organization of Western New York and a court-certified expert witness. He can be reached at [email protected] or (480) 984-0800.

I know of a body shop manager who doubles his income every year doing "side work." Big deal, right? Lots of techs do side jobs in their garage at home and make an extra buck.

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But this is different. This manager makes an additional $60,000 each and every year – and he doesn’t get dirty. No Bondo on his fingers, no paint fumes and – best of all – he makes this $60k in about 50 days.

That’s not a mistake. I didn’t mean 50 weeks. I mean 50 DAYS.

No, I haven’t been painting without a respirator, and no, I’m not talking about multi-level marketing pyramid schemes. What I’m talking about is this:

$150 per hour x 8 hours = $1,200

$1,200 x 50 days = $60,000.

(I love math, especially when it works like this.)

You’re probably wondering how, in an age when shops are still fighting to get $40 per hour, this guy is getting $150.

Although he still relies on his training, certificates, knowledge and experience in the collision repair field, he doesn’t use it in a shop environment. He uses it all in a courtroom.

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The Two Types of Witnesses
The main difference between an expert and a layperson is what they’re allowed to testify about (and how much they get paid). Laypeople can only testify about what they heard, saw, smelled, said, touched or, in some limited cases, what they felt (such as fear). An expert, on the other hand, can form opinions about subject matter and testify about it – rendering their opinions as factual.

Who qualifies as an expert? According to the Code of Federal Regulations (CFRs), if scientific, technical or other specialized knowledge will assist the trier of fact – the judge or jury – to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

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Knowledge, skill and experience are things I’m sure everyone reading this has plenty of. Training or education is something else commonly found in the repair industry, and most of you probably have proof of your training and education hanging on the walls in the office. These type of certificates and credentials can go a long way toward establishing the person as an expert.

In some courts – typically the lower courts such as small claims court and even some district courts – the requirements are less stringent than what the CFRs call for. In these cases, the person being considered as an expert must only possess knowledge not possessed by the common man.

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So who qualifies as an expert? Pretty much everyone reading this.

Why Become an "Expert Witness"?
There are a lot of good reasons to offer your services as an expert. For starters, there are usually at least two sides to every story. Imagine someone who doesn’t know about automobiles trying to decide exactly what the truth is? An expert can help clarify issues and expose the truth.

Another reason is because certain groups such as the elderly and the young tend to be taken advantage of. Experts help level the playing field for those with less knowledge. The simple fact is that the majority of the motoring public doesn’t know much more than where to put the gas and when to have their oil changed. One of the most honorable reasons for offering your services as an expert is for consumer protection and assistance.

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Of course, one of the biggest reasons people offer their services as an expert is for the money. One-hundred-and-fifty dollars per hour is probably a good guess at what most automotive experts command and, in some cases, an expert can earn as much as $350 an hour or more.

There are other reasons as well:

 

  • To do more of something you like.

  • To take advantage of your knowledge and experience.

  • To get into the action.

  • To give back to society.

  • To educate others.

 

Who Hires Experts?
1. Attorneys: Attorneys know the law, but they don’t know automobiles – and the smart ones rely on experts to guide them. Attorneys don’t want to take weak cases, so they want unbiased, professional consultation.

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I got a letter from an attorney one time. The case involved an old Dodge Colt and an oil change that the vehicle owner claimed caused her engine to blow up. After reviewing the facts, I declined the case – and the attorney paid me my $150 fee, just for reviewing the paperwork for an hour.

Some of you might wonder how I was able to charge the lawyer even though I declined the case. But aside from refusing to work for free, I had a very sound reason for charging him (and he had a very sound reason for paying me).

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Let’s just say that the attorney spent 20 hours researching case cites, preparing for the court case, sending letters and stuff like that. At an average attorney rate of $300 per hour, the attorney would have six grand out on a losing case (he really wouldn’t have had a chance on this one). At that rate, the 150 bucks he paid me was a bargain.

Attorneys don’t want someone to tell them what they want to hear; they want to know the truth.

How do attorneys find experts to help them? One way is through the referrals they get from other attorneys. And once you develop a reputation as a reliable expert, this can be an excellent source of new business.

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Another common source is through directories. Some of these are fee based, and others are free. Yet another avenue for getting attorneys to contact you is brokerages. Most of these are percentage based, so the brokerage collects a portion of your fee.

Sometimes if you work with an attorney and he likes you and your work, he may list you on his trial lawyers list serve. This isn’t available in all areas and generally isn’t available to the public.

2. Consumers: If you’re doing post-repair inspections and diminished value evaluations, you can be sure you’ll be called to testify. I’ve had a couple of clients try to go to small claims court without me. Besides taking the chance that the insurance company attorney representing the defendant won’t simply eat them alive in the courtroom, they were also risking that my report and photos would be accepted. And, in both cases that come to mind, the plaintiff – my client – had to ask for a continuance to arrange for me to be there to verify that I did the report and took the pictures. In this case, an affidavit stating that I had indeed taken the pictures and prepared the report may have been helpful.

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Another important thing for the consumer to consider is that the judge can easily be misled by the opposing counsel. In one case I participated in, the insurance company attorney used the phrase "usual and customary" three times in an attempt to make the judge think that they shouldn’t pay the difference between their estimate and the shop’s actual invoice. Fortunately, the judge understood when I said that I believe the proper measure was not "usual and customary," but rather, "reasonable and necessary."

You owe it to your clients to be available for them when they go to court.

Even if you’re not doing post-repair inspections, a consumer may need your help. How often have you seen evidence of shoddy – or unsafe – repairs? These people have a right to be made whole, and it’s often necessary for them to go to court to get what they’re entitled to. In cases like this, the original repairer will often ignore the consumer’s complaints – making it necessary for him to seek redress in a court of law.

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What It Takes to Be an Expert
It helps if the expert is part detective, part author, part lecturer, part teacher and part actor. You don’t have to be an expert in any of these fields, but you do need to be capable in all of them.

You need to be a good enough detective to uncover the facts, which is exactly what post-repair inspectors and independent vehicle examiners do. You need to be able to clearly write a report of your findings – and remember, a lot of attorneys want you to talk to them before you write the report.

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The lecturer and teacher part go hand in hand when it comes to educating the judge or jury since you need to be able to deliver your thoughts clearly. For example, you don’t want to use terms like R&I. You need to spell everything out for the judge and jury since they may not know anything about collision repair.

The actor part comes into play as far as making others believe you’re comfortable when you’re not, remaining calm when you’re angry and demonstrating things with your hands or, in some cases, with props.

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You also need the ability to think fairly quickly and to listen to what the attorney is asking while recognizing what he’s not asking and where he might be headed with a particular line of questioning.

You need to have the ability to demonstrate mastery of the subject. You need to look and sound like an expert.

Above all else, you have to be believable and credible. Bill Gates is an expert in computers and certainly an expert regarding his own company, Microsoft. But on the stand, he was about as credible and believable as Bill Clinton. He was wishy-washy and hesitant – and that contributed to the verdict the jury came back with, costing his company millions of dollars.

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Be Prepared
The real secret, however, is being prepared. Not only prepared physically – you need to have your facts and information organized and ready – but you also need to be prepared mentally.

I review all the documentation thoroughly the night before, and I don’t do any other claims until afterward; I don’t want to get two claims or vehicles confused. I can just imagine how stupid I’d look testifying about a 2002 Honda Accord when the plaintiff’s car was actually a 2004 Taurus.

I then review the documentation again briefly in the morning before the trial. That way, all the facts are fresh in my mind.

But you’re not the only one you need to prepare. You need to prepare the attorney as well.

You should point out to the attorney the strengths and weaknesses of the case. Keep in mind that anything you write regarding a case can be considered "work product" in most cases, and your work product is subject to discovery.

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Prepare a list of questions for the attorney. Smart attorneys want and even expect this. You can use these questions to avoid problems when the opposing attorney cross-examines you. If you have any weaknesses yourself, this is a good time to point them out, answering them in a way that minimizes the shortcoming.

These questions should also focus on the strengths of the case, pointing out the strongest evidence supporting your position.

Expert Agreements
It’s important to consider having an "Expert Consultant/Witness" agreement before you commence working.

In the medical field and other "professional" industries, most experts won’t work without one. In this industry, some experts won’t work without one, while others don’t use them. Depending on the attorney and the case, I may or may not use one.

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There are different types of agreements:

 

  • An "Inspection Agreement" does not push litigation, but provides for it. The Inspection Agreement lets the vehicle owner know that he might be responsible for additional payment if additional services are rendered. At this point, the only thing you’ve been hired for – the only service that you’re providing, the only service they’re paying for – is the inspection.

     

     

  • An "Expert Consultant/Expert Witness Agreement" can be used for an attorney or a consumer. It should identify the expert and the contracting attorney or client, reference the case the services are being provided for and include a basic description of the services the expert intends to provide. But it shouldn’t be so limited as to eliminate the possibility of expanded services.

 

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The Deposition
Obviously, the first step in a case is research and investigation, but the first step of the actual court case is typically the deposition.

Going to court is very much like the deposition. One of the major differences is how the opposing attorney will allow you to respond. Where he may have let you go into greater detail in the deposition, you’ll almost assuredly be shut down during the trial.

The opposing side has explored everything they want to during the deposition, so they have all the ammunition they need. At this point, at least with the opposing attorney, the expert’s hands are tied. It’s been said that attorneys explore in the deposition and expose during the trial.

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The deposition is part of the discovery phase of a trial, and depositions are a legal procedure. You’ll be sworn in. "Do you swear to tell the truth, the whole truth and nothing but the truth so help you God?"

During the deposition, the opposing attorney can ask you just about anything – and I mean almost anything. Generally, the bigger the case, the deeper they’ll dig. Your entire life history may be open for discussion and interrogation. Don’t be surprised if any skeletons are uncovered. Just be ready. Most importantly, be truthful. Never, never, ever lie. It will come back to haunt you – and could land you in jail.

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Before you get deposed, if you decide to use an expert agreement – and this is one reason why you should consider it – you should already have a signed agreement in your file. You’ll want to know if you’re being deposed as a lay or fact witness, or as an expert.

If you’re being deposed as a result of your inspection, the vehicle owner should have already signed your inspection agreement, which includes a provision that he agrees to pay additional fees – expert witness fees – if this happens.

Experts should get compensated at their "court time" rate. There’s a big difference between what a fact witness is entitled to and the amount an expert can get.

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If you’re subpoenaed to be deposed as a material fact witness, make it known that you’ll only testify in that capacity – that under no circumstances will you offer professional opinion without just compensation. Of course you don’t want to be a jerk about it. Remain professional, but stick to your guns. Don’t work for free.

Recording the Deposition
There are two ways of recording a deposition: videotape and transcription.

In a videotaped deposition – which is becoming more popular – you’re on camera and sections of the deposition can be played at the trial, so the jury will see you. Your appearance counts. Dress accordingly. And your attitude will show, so act accordingly as well.

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A word of caution (and if you ever get a chance to read Bill Gates’ deposition testimony from the Microsoft anti-trust suit, you’ll understand exactly what I mean here): Don’t be too reserved, don’t get mad and don’t be condescending.

If you saw Gates’ testimony, he appeared arrogant, indecisive and elusive. He came across as someone who had something to hide. This isn’t as bad in a transcribed deposition, but when it’s videotaped, it can be extremely destructive.

More typical yet still destructive behavior on the stand – and I wasn’t in court to see this – was Ed Rust Jr.’s testimony in the aftermarket parts case of Avery v State Farm. Videotaped depositions show the timing of the responses. If you take too long, you look like you’re trying to cover up something or looking for a way out. Hesitation, fumbling for answers, anger – even if provoked by an attorney (and they might not show the provocation at the trial, only the reaction) – can all be seen by the jury.

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The other method of recording a deposition is by transcription. A court reporter, or stenographer, will write what’s said. You have the right to read the transcription before signing it – a right that you shouldn’t give up lightly.

Probably the main reason for reading the transcript is to make corrections. Let’s say you testified that you’ve been in the collision repair business for 23 years, but the stenographer switched the two and the three around, making it look like you claimed to be in the business for 32 years.

Another benefit to reading the transcript is to review your answers, looking for good answers that you can repeat next time, as well as identifying responses that could use improvement.

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Look the Part
Just as important as sounding professional is looking professional. This is especially true if the deposition is videotaped, and even more so when it comes to going to court.

You should dress professionally and neatly. (No oversize pants falling off your butt, no matter how stylish you might think they are.) Does this mean you have to wear a suit and tie? Maybe, maybe not.

If you’re a technician, ask the attorney if it’s OK to wear your uniform – just make sure it’s clean. Do you know why police wear their uniform in court? Because it helps to establish them as an authority figure. It can work the same way for a tech.

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Women can either wear pantsuits or skirts, but make sure the skirt at least covers your knees. If you’re not sure what to wear, ask the attorney you’re working with.

Dress comfortably. If you don’t like to wear ties, let the attorney know. A sport coat or blazer and dress slacks are usually acceptable. That’s part of good testimony – being comfortable.

As for jewelry, women shouldn’t wear long dangling earrings, nor should they wear 10 different ones in one ear. And don’t think that your hair will cover them. Women on the jury will undoubtedly notice and unconsciously think less of your testimony. Also, don’t wear a half dozen bracelets or rings on every finger. You want to generate an image of being a knowledgeable professional at all times.

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Guys, no earrings or studs at all. Again, it might be the latest and coolest trend, but the general public doesn’t view this as acceptable. Same thing for those who might have their tongue pierced. It’s simply not deemed appropriate and professional, so take it out before going to court. (If anything else is pierced, I don’t want to know.)

"Types" of Attorneys
There are basically two types of attorneys: those who are professionals and those who are not.
A professional attorney has a job to do, treats witnesses with respect and often seems like a likeable person. You might even buy the guy a beer if you saw him out at a bar.
Attorneys who aren’t professional are condescending; they treat witnesses like they’re above them, they’re argumentative – as if they know more about vehicles than you do and as if the witness doesn’t really matter – and they can be arrogant and nasty.

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So what’s the difference between the two types of attorneys? Nothing. They both have the same goal – to win the case for their client.

Keep in mind that the opposing attorney is the adversary – and not above using tricks to trap you. Some attorneys try to get you to relax during the deposition in an attempt to catch you off guard with statements such as, "Don’t be nervous. This is informal."

Bull. This will be in court – this is court. Even if it’s the most informal formality of the entire process, it’s still a legal procedure.

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Other attorneys try to throw you off by playing the buddy role: "Hey, don’t worry …" Again, I say bull.

Other times they play "Good Cop Bad Cop" all by themselves. These Jeckyl and Hydes can really throw the witness off guard.

Still other attorneys don’t attempt to mask their intentions and go for the jugular immediately.

No matter what their approach, they work for the other side. Trust them like you trust insurance adjusters – only about as far as you can throw a ’56 Mercury. While you should always remain completely professional and treat the opposing attorney with dignity and respect, this doesn’t mean you should trust him.

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And remember, whether they approach the questions in a laid back, easygoing manner or go right for the throat, they’re still trying to win the case for their client.

Almost all attorneys are good attorneys, and a good attorney is a formidable opponent. They know as much about the law as you know about vehicles, and their ignorance of automobiles is only surpassed by your ignorance of the law.

A really good attorney has done his research and is prepared to challenge any weakness you have. Be ready to be challenged on any and every aspect of your career. A really good attorney can discredit even the most credentialed witness.

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Also, understand that the only cases that go to court are those that are close. That is, if one side or the other has a distinct advantage, the case will never see the inside of the courtroom.

Overall, attorneys don’t argue right versus wrong. They argue the law. If they argued right and wrong, criminals wouldn’t get off simply because the cops didn’t read someone their rights – even though they were caught red-handed with a smoking gun.

The other thing to remember is that experts don’t win or lose cases. Attorneys do. And the attorney who prevails isn’t always the one who’s right. The attorney who gets a favorable judgment is often the one who argued the fine points of the law better than the other one.

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The Role of the Expert
There’s no possible way to address all aspects of being an expert consultant/expert witness here. That information would fill a book, and it’s even difficult to cover everything in a four-hour seminar.

Other things to consider that I just didn’t have the time (or space) to get into here are: marketing your services; understanding and using inspection and expert agreements; forming and substantiating opinions; understanding courtroom procedures such as objections and sidebars; understanding hypothetical, absolute and "trick" questions; dealing with partial or leading questions; knowing how much or how little to say in the deposition; overcoming juror boredom; reinforcing your authority and asserting yourself without sounding combative; reacting to antagonistic or aggressive attorneys; preparing properly; overcoming challenges to certifications; being sequestered; associating with people in the courthouse; going to and leaving the stand; effectively disagreeing with other experts; controlling and managing your attitude; understanding the types of examinations; knowing when to respond to the attorney and when to speak to the jury; and much, much more.

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There are a multitude of great reasons for becoming an expert consultant/witness. It’s clean work, it pays extremely well and it provides an intangible "warm" type of reward – the satisfaction of knowing you helped someone who may otherwise have been taken advantage of.

And the work is out there. As more and more attorneys realize the importance of including the property damage aspect in their BI/PI claims and as more and more lawsuits are brought forth for improper repairs, the demand for collision repair experts will increase.

Writer Patrick Yurek is the vice president of Collision Consulting LLC (www.CollisionConsulting.com). He has 22 years of industry experience and has held every conceivable position in a collision repair facility from sweeper to management. Among his credits are several PPG certifications and General Motors technical certificates. He was also the president of the General Motors Service and Parts Managers Organization of Western New York. Yurek can be reached by e-mail at [email protected] or [email protected] or by calling (704) 821-4190.

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It probably goes without saying – but I’m going to say it anyway – merely reading this article in no way qualifies you to be a good expert witness. If you’re interested in learning more about becoming an expert witness, give The Coalition for Collision Repair Excellence (CCRE) a call at (877) 700-7743, call me at (704) 821-4190 or drop me a line at
[email protected]

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