Expert Witness Question on Being Retained

An expert sent us the following email about engagement agreements. I think you might find her questions and Rosalie’s response of interest.

EXPERT:

Hi, Meredith and Rosalie, thank you for the monthly updates. I find them fun to read and very informative. I have also referred a couple of other folks who are starting out to you and your web site.

I have a question for you: A new legal firm just sent an engagement letter. It has a new twist – basically says that by accepting the engagement, I acknowledge that the insurance company is retaining me and is the entity responsible for the fees. Then states that the law firm is not expressly or impliedly (love that word) responsible for any of my fees, costs, etc….unless otherwise agreed to in writing…..

They are sending a retainer. However, I just sent them my engagement letter which I wrote between my company and the firm and told them I do not normally do engagement agreements with the insurance company as I consider the legal firm my client. Also added a sentence that says – if I go beyond the time needed and covered by the retainer, I will need an additional retainer before proceeding.

Questions:

1) Should I sign an engagement letter such as the one I described or insist that it be with the legal firm?

2) Does adding the sentence regarding the need for up front payment for all work cover my concerns?

3) Is this a standard practice that I just haven’t come across before?

As always, thanks so much!

ROSALIE:

1) The Explanatory notes for the newly released Expert Witness Retention Contract says in point number two, “The contract is with the Law Firm, not the law firm’s client. This protects the Expert from clients of the law firm who may be unable to pay and also allows the placing of contractual duties on the Law Firm” (see paragraph number six of the contract).

I agree.

Some experts require that the contract be signed by both the law firm and the litigant the law firm represents. There is an example of this in The Expert Witness Marketing Book, page number 59. This is not usual, however.

One reason I prefer that the expert contract only with the law firm is to perpetuate the appearance if not the reality that the expert is unbiased, not an advocate of one of the litigants, even though he will probably have personal contact with the litigant while working for their attorney. I like the statement, “The attorney is an advocate for his client; the expert witness is an advocate for the facts.”

Since I often edit the engagement materials for my clients, I will caution you to watch your wording. The problematic word is “client.” Your client is the attorney and/or law firm. The attorney’s client is the litigant, whether plaintiff or defense. I’ve seen the worst mish-mash imaginable in contracts (some drawn up by attorneys), involving that word. Belabor the point if need be; be very, very clear to whom you are referring.

One of the worst messes I saw was an expert contract in which the attorney signing was theoretically obligating his client for the expert fees along with himself, similar to the scenario posed by this reader. I don’t have to be an attorney to realize that’s not enforceable; someone is supposedly liable who is not signing the contract? I don’t think so.

This brings me back to the question posed. If the expert is agreeing to get paid by the insurance company and yet the insurance company is not signing the contract/engagement letter, I think the engagement procedure is moot. As the Expert Witness Retention Contract also says, your own attorney (not the client who hires you for expert witness work) should be consulted, if necessary, regarding your expert witness contract.

2) Adding the sentence is good. More important is that you set firm policies and abide by them; this is what will keep you from having concerns. Unless you know and have an established relationship with the attorney, the situation for which you should aim is to always be working “against money in the house.”

In other words, get a replenishable retainer; when the money runs out, stop work until the retainer is replenished. Will such a policy limit the work you get? Possibly. That’s why I hedge about being accommodating to clients you know and trust. And the reputation of insurance companies (defense attorneys) is that they usually do pay, albeit slowly (and they occasionally) try to negotiate the fees after the fact.

But the number one complaint of experts is about not getting paid by attorneys (see Expert Pay Discussion), so I make no apology about my firm injunctions to GET THE MONEY. You are not the financier of the law suit, nor the factor for the law firm’s receivables. You are a vendor, and you must be paid in order to work.

If you limit your exposure by getting an initial retainer, having the retainer replenished whenever possible and, if not replenished, billing often and stopping work when not paid promptly, being paid in advance for deposition appearance and being paid in advance for court appearance, the contract is much less critical.

The ideal is to be businesslike about both the retainer payment and the contract. Just don’t let the fact that you have a signed contract lull you into not billing often enough, not stopping work when the invoice is not paid in a timely fashion, and scheduling and appearing for deposition and/or court without advance payment (and in addition to advance payment for court appearance, any outstanding invoices must be paid).

3) This facet of the legal “game” is so un-standard that it would be funny were it not pitiful. Many, I would hope most, attorneys engage the expert in good faith and pay for her services at a fair rate and in a timely fashion.

Unfortunately, the others present a myriad of unseemly scenarios from wanting the expert to start work before receiving the retainer, continue working long after the retainer is used up, wait interminably for payment, and re-negotiate the rate after the case is over, to bizarre situations such as asking the expert to take the hit for his entire fees because the attorney lost the case!

You set your standards, and gain the respect of others. You have risen to the top of your profession or you wouldn’t be regarded as an expert. The good clients, the ones you want, won’t balk. The attorney who starts off nickel- and dime-ing you and resisting signing a contract is giving you a clue that you ignore at your peril.

Rosalie Hamilton

Note from Rosalie:

Many experts express frustration about collecting their fees from attorneys and how to protect themselves in their engagement agreement.

SEAK just released an Expert Witness Retention Contract that does a great job of covering the many points an expert should at least consider including in his or her engagement document. You may want to adopt the entire document, but, if not, there are many portions to choose from that might apply to your specific practice (and past experience with attorneys). The authors, formerly practicing attorneys, suggest consulting with your own attorney to determine what language would be appropriate for you.

A couple of my marketing coaching clients simply personalized and are using the complete document. Another client feels that his attorney prospects would be put off by such a long document, so he picked out the two elements that addressed areas in which he had been “burned,” and just added them to his existing contract.

The real beauty of it is that it will raise your awareness of what can happen and gives you the terminology to protect yourself.

Expert witnessing sometimes feels like a game, and this Expert Witness Retention Contract gives you a preview of what can and sometimes does happen on the playing field and how not to get beaten.

Best of success to you,

Rosalie

Note from the editor:

The Expert Witness Retention Contract has been favorably peer reviewed by plaintiff and defense counsel, judges, and expert witnesses.