The biggest problem experts have in dealing with attorneys is ensuring they
get paid for services rendered. There are several steps an expert can take to
improve the probability of being paid. First, it is not unreasonable for an
expert to request and maintain a reasonable retainer during the pendency of
the case. The retainer should be sufficient to minimize the potential loss.
The retainer can be applied as a credit to the last bill in a matter. If an
attorney is reluctant to pay a retainer, you can conclude he will not be a reliable
client.
It is important for the expert to bill regularly and to ensure his or her bills
are paid promptly. If an attorney fails to regularly pay his bills, you should
let that attorney know you will not expend significant time on the case absent
payment in advance. It is important for the expert to bill promptly when asked
by the attorney to do so. For plaintiff's attorneys handling cases on a contingent
fee basis when a case is settled, your expenses as well as other expenses come
out of the client's share. All such expenses must be posted and charged to the
client prior to the date of final distribution. It is the attorney's responsibility
to notify the expert the case has been settled and that he needs a bill within
a prescribed time period in order for it to be paid. It is the expert's obligation
to make sure the bill is promptly submitted. It is not uncommon for attorneys
to refuse to pay experts that submit bills after the date of final settlement.
Another common problem with billing occurs when the expert gives a deposition
for which the other side's attorney is responsible. I have often heard experts
complain of difficulty collecting from an attorney responsible for deposition
charges. Keep in mind your contract of employment is with the attorney that
hired you. He or she is responsible for all time you bill on a particular file.
It is your attorney's obligation to pay you and in turn it is your attorney's
responsibility to collect deposition monies from the opposition. When I am in
a situation where the other attorney is responsible for deposition charges and
my expert agrees to bill that attorney directly, I advise my expert to notify
me if the bill is not paid within thirty days. I promptly notify my opponent
that if the bill is not paid promptly, I will either delay paying the other
side's experts for alike period of time or pay my expert and commence a small
claims court action against my opponent. This is an issue you should work closely
on with your lawyer. Your lawyer should be cognizant of his or her responsibility
and not merely brush aside your concerns with the claim "nothing can be done."
Many experts use written agreements with hiring attorneys to detail the terms
and conditions of the relationship. Although such an agreement can be beneficial
to the expert, it can lend to the impression that an expert is merely a hired
gun. You should carefully consider the advantages and disadvantages.
Establishing an hourly rate for expert services is an important decision. The
higher the hourly rate, the more an expert appears to many jurors as a hired
gun. In many communities high hourly rates are not received well by juries.
For that reason, I prefer hourly rates less than two hundred dollars an hour.
I prefer that my expert put more time in and change less per hour from the standpoint
of jury appearances.
This is the first in a series of articles by John C. Cabaniss, Esq, (414) 278-6066,
on working with attorneys.
[The Expert Witness Journal, November 1994]