Nuts and Bolts. Making Your Practice Go to Grow
By Beryl Vaughan
How to develop and manage your practice as a forensic expert.
Let’s get simplistic and then specific.
1. Get the business.
2. Do the work.
3. Bill the client.
4. Collect the money.
5. Get more business.
1. Get the business: Marketing
A solid marketing strategy has moving parts. Most of this site addresses (1) the importance of pinpointing what you want to communicate about your practice and (2) where we can display that information. “Display” is the operative word. Attorneys frequent the internet looking for experts in the same places over and over. It can be a “go-to” set of keywords to search or a particularly favored expert directory. In some locales, a professional organization meeting is where networking introduces attorney and expert.
Most often, though, the search begins online. Online visibility is crucial to promote your practice. A website is one piece.
Websites are believed to be the holy grail of marketing, as they should be. It’s how most attorneys will learn about you, read your CV, consider your credentials and read your style of communication–with application to your report-writing skill.
Contrary to popular belief, it’s my opinion a new website isn’t as important as a good website. More detail in the article “Website Wins and Fails.”
Create a Demand
Attorneys that understand the role of a forensic psychiatrist or psychologist in their case, are more likely to retain such an expert. The ball is in your court. Our court. Because the best way to communicate to attorneys what you do is in the language they are using. A common issue in marketing a forensic practice is the translation barrier between how we talk about psychology in the context of psychiatric injury vs. how attorneys talk about lawsuits, liability and damages. The best marketing is med-legal bilingual. For example, let’s say your background is inpatient psychiatry in an institutional setting. Perhaps you’re a staff psychiatrist in a hospital, prison, or rehab. The attorney’s case is medical malpractice where doctors are treating in a Rehabilitation Hospital. The attorney is focused on whether a physician conducted malpractice, and may not know that your experience establishing psychiatric protocols in a hospital makes you an excellent expert witness. You will be more helpful to the jury than a colleague who also has experience in medical malpractice cases involving back surgery and pain management. (See Speaking Lawyer.)
2. Do the work.
Actually, “doing” the work begins with the first call you receive from an attorney. Your work includes understanding the case, sharing your insight (and demonstrating your expertise) and talking about the scope of work. Take copious notes, date them (!), get the attorney’s contact information, ask how the attorney found you and note it. Now it’s time to send the attorney an email summarizing all of the above. Why? Because the excitement of that first call can become muddied by the shock of your first invoice. The attorney’s excited to have a knowledgeable expert on board, the expert’s got a new case. But what’s next? Your email outlines the next steps and plan of action.
Put the attorney on notice that a retention contract and retainer are required and don’t begin work until you have those in hand.
Establish with your client the timeline for your work. If they want you to testify in November they’d better get you the records by July so you can conduct the IME in August and write your report before discovery closes. Make a systematic plan with your client and your case manager to move the workflow apace. If you are your own case-manager, make a plan for yourself with reminders wherever you need them. Remember, the goal is to have more than one case and therefore twice the complexity; you don’t want to drop the ball and damage your reputation.
Use case-management methods that effectively keep you on task and increase cost-efficiency for you and your client. A checklist can be on a computer or a yellow pad. All that matters is that you don’t miss a deadline and anticipate well ahead of time what you must do. (I can help with this.) Can you easily find contact information without rummaging around in a file? Create a database. For example, your Contacts program (Outlook, Gmail) have features to track certain elements of your practice.
Work as if you’re the lawyer.* Develop and implement techniques relevant to law.
- Calendar case deadlines like expert disclosure, discovery, track hearings and depositions
- Follow up with attorneys the afternoon or next day after a relevant hearing or deposition takes place (how did the hearing go on the motion to compel an IME? Did a new attorney substitute in? What experts in your field has opposing counsel named? What happened in the deposition of the internist?) It’s all relevant to you, but even more relevant to the attorney. They will be impressed that you know your way around a lawsuit and are interested in how their case is evolving.
- As a practical matter, case management protocol is a time-saving priority and if you don’t have one, it makes everything in this paragraph above easier. You’ll read about this in Do It Like a Lawyer.
3. Bill the client.
There’s a saying,
“It’s better to ask forgiveness than permission.” THIS IS A BAD PRACTICE FOR YOU.
Bills that ask for forgiveness are less likely to be paid.
Bill regularly. Keep your client informed. Record your time with detail as you do the work, or shortly thereafter. You will proactively prevent time wasted by you and your client to figure out how you arrived at your billable hours.
4. Collect the money: the expert witness way.
Let’s start with what seems obvious: you can’t get paid what you never billed. Keep your time record scrupulously. Today I had to write down my time after many hours of hard work. My head was spinning and I was working so fast I could barely remember what I had done. I stopped and wrote it down. How did I do it? I have a system. I sent emails to the client explaining the status of tasks I was doing, that the client was doing or a third party who was going to get back to me. I even write emails to myself! I invoice promptly and regularly and am not greedy. I write off time if I feel it is appropriate, and I make sure my client is so informed. If month after month goes by and I am unpaid, collecting may very well rest on how well my work was understood so it can be acknowledged.
Ultimately, collections is tightly tied to billing practices.
Nudging an attorney to pay an outstanding invoice can be a reputation-enhancing moment.
I’ve put every approach to the test. One works better than the others: Be nice. Be a good cop. Bees to honey. If you approach a client like a collections agency would, you can kiss Goodwill goodbye. Sounds obvious, but it isn’t.
Outsourced Billing and Collections
Is your billing being handled by someone who can talk with an attorney? Does your billing method reflect the important ethical concerns of the profession?
Bookkeepers and even Collections Agencies are used by some doctors. It’s always dicey to put your billing and collections in someone else’s hands. However, if you’re busy, delegating is still smart. Also, the learning curve for these tasks is steep and may not be worth your time.
Bookkeeping services, software and inadequately trained staff can detract from your practice’s fine reputation.
It is essential that you train them about ethical considerations, like not taking payment on a lien or after a trial. Flat fees can also cash a shadow on the quality and depth of your work and opinions. Heavy-handed collections agencies routinely negotiate discounts and payment schedules that may not be appropriate for your practice, or the profession at large.
Be sure bills and communications with clients always pass through your hands.
Intermediary “Mark Up” Referrers
If you were retained via a referral service that charges an add-on to your rate, they will be handling the billing. There are a number of such businesses and some produce solid cases and have a loyal attorney following–making it a good move to “sign up.” However, such services don’t want the attorney to know about their markup. I’ve had good and bad experiences with companies that operate on this model. I’ve blacklisted a few. Minimize your exposure to loss.
- Don’t let anyone else have the contractual relationship with the attorney. Even if a referral service does the billing, you can still insist on your retention contract minus your rates.
- Commit the referral service to your entire fee schedule. It is very common for these services to focus on your hourly rate and testimony rate. Cancellation fees and how you bill for travel time are the most common to go by the wayside.
- Be a watchdog. Audit their charges and practices. In one case I worked on, the intermediary service began to harass and threaten the attorney only a month after they submitted an invoice.
- There’s already enough ugly backsplash on the expert because of the plumped up bill. Heavy-handed collections can further besmirch your fine reputation for fairness.
- Most referral services want you to stay at arm’s length from the attorneys with respect to billing. Be proactive. If you don’t like how things are being handled, make an apology to your client and a gentle reminder that you are not behind the invoices they receive.
Cooperative billing and collections with your client are part of the overall customer service experience. Avoid pitfalls by anticipating and responding to your clients’ requests for the format of invoices and remittance procedures. In a Fitness for Duty eval. you might have to invoice a large company with elaborate procedures, Purchase Order and Contract numbers, layout and even payment delays. Always reference your own file name as well as theirs on an invoice to keep cases separate. In litigation, cite the case on your invoice. Include your Tax ID Number if you have one–it makes the attorney’s life easier. Invoices are just one more opportunity for effective communication.
A word about outcome: if the attorney that retained you loses the case (regardless of whether your opinion had anything to do with it) the attorney may be paying your fees out of his or her own pocket. This is true when the attorney is working on contingency or has a client without funds. Guess how willing that attorney will be to pay your final invoice? Stay out of this scenario. Your retention contract and retainer procedures can protect you. Increasing the retainer before trial is another option.
5. Get more work.
See 1-4 above. When these work, you boost your reputation on the many fronts described. Methods and strategies are effective, but not intuitive. Get help with what you don’t know. That’s what your attorney clients do when they retain you as an expert witness. Who is your expert?
**Marita K. Marshall, Former Senior Partner at Folger Levin, Professor at Stanford School of Law, pro tem Judge, and a former boss, taught me early that written communication should be self-explanatory, on its face. It should be possible to pick up any note, email, memo, correspondence and know what is being said and in context no matter how many years have passed.