By JODI SOKOLOWSKI
Buffalo Law Journal

When arguing a personal-injury case, a plaintiffs' attorney doesn't just rely on the injured party's testimony of what happened in a car accident. During a trial, the litigator will employ a credentialed expert witness, along with a 3-D computer animation showing how the accident occurred.

"You can have an expert look at a car involved in a crash and tell if a defect in the automobile contributed to the problem," said Laraine Kelley, a senior partner at Lipsitz Green Scime Cambria LLP. "Then you can recreate in graphics how that accident occurred."

Attorneys on both the plaintiff's and the defense side use outside support services, from expert witnesses and private investigators to graphics and e-discovery teams, to fill out their litigation toolbox.

The tab for these services is high, but litigators say they're well worth the expense.

"They definitely help us service our clients more effectively and efficiently," said John Schmidt, a Phillips Lytle LLP partner.

Getting the picture

When Hodgson Russ LLP partner Adam Perry was representing a defendant accused of building a house that encroached on a neighbor's land, he looked to TVGA Consultants, an Elma-based engineering and surveying firm that provides expert witnesses, exhibits and accident reconstruction services to attorneys.

The firm's staff surveyed the property and created several trial exhibits, including a 3-by-5-foot graphic with color to show different boundary lines.

"They provided exhibits fitting to what we wanted to show," said Perry, who won the case.

TVGA works with the University at Buffalo's Center for Computational Research to generate realistic 3-D computer visualizations depicting multiple points of view.

Those kinds of exhibits "are very explanatory to the jury or judge," said TVGA Vice President Douglas Hager. "(Our services) can get expensive and take a lot of time, (but) have been accepted in court as evidence." The firm's fees for litigation support can run from $1,500 to upwards of $35,000.

Kelley recalls using technology to combine CT scans in a case involving a birth injury.

"These days, you can create graphics that will be accepted by the court as demonstrative evidence to show what actually occurred during the event," she explained. "You are empowering the jury and enabling them to make a judgment with confidence."

It's crucial to make sure graphics match what the expert will say on the stand, Kelley stressed.

"That can be disastrous," she said. "You have to make sure the person doing your graphics will work closely with your expert. Otherwise, you'll have pretty pictures that can't get in front of your jury."

Stating the case

Attorneys retain experts who have written journal articles or books, often seeking out those with credentials in their field, even if the cost is significantly higher than for less-qualified sources.

"If you have the resources to hire the best person who has the best experience," then you'll have an advantage over your adversaries, Perry said.

Kelley said it's far more important to consider how experts are going to present themselves - ideally, as authoritative but not haughty - than to keep your eye on the bill.

"Frankly, I never even think about" whether one expert or service costs more than another, she said. "The expense doesn't necessarily tell you who's the best."

"Being an expert in law is one thing, but being an expert in what we do and how we do things is beneficial in the case," said Hager, who has testified several times in his 35-year career.

Lots to discover, uncover

Litigators often bring in outside help for electronic discovery - when pulling data from computer hard drives, for example, or determining whether plaintiffs are injured at the level they say they are in worker's compensation or personal-injury cases.

Defense teams for insurance carriers often hire private investigators to conduct surveillance on a plaintiff, typically after that person has been deposed.

"The attorneys have them locked in to what (investigation subjects) are able to do (physically)," said Ken Horton, a vice president with investigations company Probe Services. "We're basically their eyes out in the field."

If the private eye records a plaintiff turning his neck while driving, but said during the deposition that he has limited movement, the surveillance is beneficial to the defense. That in itself may be enough evidence to present in court to dismiss the claim or even encourage the plaintiff to settle for a far smaller award.

"They're that much more prepared in settlement negotiations with the information we provide," Horton said.

Probe Services also does e-discovery investigation, which is a growing but still- evolving service.

Phillips Lytle's Schmidt said Western New York trials haven't seen much e-discovery - because of the expense and the lack of precedent, he believes. However, he said the service will become more common as technology improves.

"My practice would probably be a lot less effective without the use of good private investigators and computer forensic consultants," he said.

Cost-benefit ratio

We asked our sources to give a typical cost range for all support services in a moderately complex trial. They said the total costs vary widely from case to case, from a couple thousand to tens of thousands of dollars.

The benefits of support services, they said, may amount to hundreds of thousands of dollars, or even millions, in awards or decreased payouts. They may help push a case toward settement, cutting litigation costs for all parties.

So long as a support company's rates are consistent and competitive, attorneys said, cost shouldn't be a factor when deciding which expert or service to retain.

"You weigh the qualifications and quality of the expert against the cost and potential claim or recovery," Perry said. "I'm far more interested in quality than I am in cost."

Kelley said she doesn't blink at spending a couple thousand dollars in the beginning to see whether the case is worth pursuing.

"Sometimes you have to be willing to spend money to evaluate a claim fully and fairly," she said. "Even if you don't get a run on that money, it can still be money well spent."

 

Lenders help firms cover trial costs

Lawyers who take cases on a contingency basis - clients pay only if their case is successful - don't always have a steady flow of income to conduct trial preparation and maintain their operations. Some finance their trials through personal credit cards, home-equity loans and bank loans.

Often, those sources don't provide enough liquid cash for firms, so they'll use collateral to secure loans from law-firm financing companies.

"Contingency-fee firms have cash flow that is often volatile. They may win a large case and have excess funds, but month in and month out, there's not enough cash," said Counsel Financial Services LLC President Paul Cody.

If a case is potentially worth $20 million, a typical contingency fee of 33 to 40 percent will net fee income of $6 to $8 million. Counsel Financial will offer a loan amount or credit line based on that potential income.

Cody said that's a big difference from what a bank does when it takes a blanket lien against all of a law firm's assets.

"We feel there isn't anyone else who does what we do. We feel there isn't a true apples-to-apples comparison to us," he said.

The Williamsville-based company, started in 2001, offers loans and credit lines nationwide from $50,000 to $25 million, primarily to personal-injury plaintiffs' firms. The loans are attended by a $500 application fee, a one-time undisclosed closing fee and "competitive" interest rates.

Manhattan-based plaintiffs' lawyer Chet Kern uses Counsel Financial so he can "practice at a superior level" and hire the "absolute" best experts.

"They have allowed me to grow my business, truly maximize my clients' recoveries and allowed me to be on the cutting edge of how I present a case," said the Chet Kern LLC principal, who litigates construction-accident, toxic-tort and brain-injury cases.

Litigation loans can be used for any purpose, including trial preparation, case disbursements, advertising, payroll and overhead.

Counsel Financial is currently the only firm-financing company endorsed by the American Association for Justice.

- By Jodi Sokolowski