ERISA INSIDER: VOL II., ED. II: How To Select An Expert Witness For Your ERISA Case
Use these 3 elements to screen candidates for your next Expert Witness in an ERISA lawsuit.
So, you’re looking for an Expert Witness to help you with your ERISA lawsuit.
It goes without saying that having someone you can rely on to stay calm under pressure, and provide you with true expert testimony is a must to ensure your client has the best chance of winning the case.
The question then becomes: who is your expert?
What criteria do you need to look for to determine if someone is both qualified for the job, and will allow you to rest easy knowing that they’ll be confident to take the stand, if necessary?
This edition of ERISA Insider lays out our top 3 elements attorneys should look for when screening potential candidates to be your next Expert Witness.
Let’s jump in.
Element #1: An Independent Fiduciary Who’s Assumed Personal Liability For Many Clients
Almost anyone who’s worked as a TPA, or for an insurance firm that provides services to companies that offer Health & Welfare or Qualified Retirement Plans can claim to be an “expert” in ERISA Plans.
However, you and I know there’s much more to being an expert in the complex legal problems ERISA plans can face than simply what type of prohibited transaction they’re dealing with, or how the plan is structured, generally.
That’s why we take a firm stance on hiring an Independent Fiduciary that specializes in ERISA compliance as your expert witness.
Independent Fiduciaries who have served as a 3(16) Plan Administrator, or much better, the 402(a) Named Fiduciary for their client’s ERISA plans are the only professionals who have the necessary expertise to answer for plan transactions, as well as strategic elements about various insurance arrangements and relationships among business entities involved in a particular plan.
The main differentiator between an ERISA Independent Fiduciary, and another type of “expert”, is an Independent Fiduciary subject to the aforementioned positions is confident enough in their knowledge and skillset to take on personal liability for plan compliance.
This means he or she must have knowledge about subject matters beyond something as basic as insurance coverage or plan governance.
For example, a major industry that raises ERISA compliance questions comes from the Professional Employer Organization, or PEO, space.
You might ask a prospective Expert Witness: How does the co-employment relationship work between the PEO and its employer members? How does this relationship affect benefit plans and ERISA compliance?
Or, as another example, you could ask: How do captive insurer arrangements work? What is the benefit of being self-insured versus fully-insured?
How do these arrangements affect plans from different entities, such as Trade Associations?
All of these questions can be easily answered by an experienced independent fiduciary who has worked for clients in all of these industries.
Employee benefits and retirement planning has become increasingly complex over the last few decades, with new types of plans and insurance arrangements entering the marketplace. Only someone who’s been around to witness the changes and work through them hands-on will have the necessary expertise to serve as your Expert Witness.
Element #2: Years of Experience Working For The US Department of Labor as an Investigator of ERISA Plans
In addition to being an Independent Fiduciary, the ideal Expert Witness to testify in your ERISA lawsuit should have prior experience with the US Department of Labor.
Specifically, an Independent Fiduciary who previously worked as a DOL investigator tasked with auditing ERISA plans will know more about plan compliance, and the most common findings, than any other expert in the field.
This may be the most crucial element because not only do DOL investigators have vast experience with the types of plans and how they operate, but they have also seen the most common civil and criminal violations plan sponsors and fiduciaries commit that put their participants and beneficiaries in jeopardy.
They are also familiar with the process the Employee Benefits Security Administration (EBSA) uses to screen Form 5500s, and other plan documents, for errors or potential red flags that can trigger an audit.
This perspective, coming from both the standpoint of the investigator at the DOL, and the Independent Fiduciary working to protect the client’s plan, will provide you with a tremendous wealth of knowledge and information about the intricacies of your case that no one else could.
Element #3: Prior Experience Testifying In Court As An Expert Witness In ERISA Lawsuits
Having the ability to review documents and connect the dots to help you formulate a brief is one thing, but actually being able to take the stand and face cross-examination is a totally different animal.
The number one fear every attorney has before a trial is that their star witness might fold under the pressure.
You need to be able to trust your expert witness to be confident in taking the stand and answering the hard questions in front of a judge and jury, should it come to that point.
That’s why having prior experience taking the stand and testifying in ERISA lawsuits is an absolute must for your expert witness.
When interviewing potential candidates for this position, be sure to ask directly about his or her experience testifying as an expert witness, depositions they have taken part in, and gauge the candidate’s level of confidence as best you can.
Remember, this person may one day be called to the stand to represent your client and articulate important facts of your case in front of a judge. Are they ready to handle the pressure?
President of the ERISA Advisory Group and Former DOL Investigator, William Kropkof, CEBS, Could Be Your Next Expert Witness For Your Firm’s Employee Benefits Case
If you’ve made it to the end of this article, you’re probably wondering who meets all three of the proposed elements to serve as your next ERISA Expert Witness.
William Kropkof, CEBS, currently serves as the President of the ERISA Advisory Group. He has been an Independent Fiduciary specializing in Health & Welfare and Retirement Plan strategy and compliance since 1995.
During his career, he has worked with clients that offer plans of all types – including PEOs, Trade Associations, Taft-Hartley Unions and Single Employers.
Prior to founding the ERISA Advisory Group, William worked as a DOL investigator for 7 years, auditing dozens of ERISA plans and reporting his findings to the EBSA (formerly called the Pension Welfare and Benefits Administration, or PWBA).
In addition, Mr. Kropkof has testified as an ERISA expert witness in court, participated in video depositions and issued expert reports and assistance on numerous cases.
If you are looking for a qualified Expert Witness to help with an ERISA lawsuit, please schedule a time to speak to William at your earliest convenience.