Wednesday, June 14, 2006

Experts Respond to "Watch Your Billing Practices"

We recently sent an email to our newsletter subscribers, "Another Reason to Watch Your Billing Practices" (you can find a reprint of the article at the bottom of this post). I received many very helpful responses from readers which I hope to share with you at a later date.

But the attention paid to this subject prompted me to realize that many new subscribers may be unaware of our "Getting Paid" discussion that occurred last year. We published an article in our free monthly email newsletter containing advice for experts on making sure they get paid. The response to that article was so overwhelming, we compiled all of the messages, along with an extended dialogue between Rosalie and an expert with a different perspective on billing and engagement practices of experts. The resulting compilation of the report, expert responses, and dialogue can be found in the free Expert Pay Discussion.

If you haven't, please read the Expert Pay Discussion and the article below and let me know what you think.

Another Reason to Watch Your Billing Practices

Clients and long-time readers of our newsletter know the importance we place on making sure you get paid for your time and expertise. In addition to all of the reasons stated before, the recent high profile trial and investigation into plaintiff firm Milberg Weiss highlight another very persuasive reason to set your rates, have a contract, be paid prior to deposition and testimony and -- most importantly -- make sure you get paid. It's not just a matter of money - you could endanger your reputation, career, and even freedom.

Expert John Torkelson has had a very lucrative career as a securities expert, much of it on behalf of Milberg Weiss. In the midst of a slew of charges against Milberg Weiss, Torkelson's name has surfaced repeatedly. The most recent allegation and the one most relevant to you involves an accusation of being paid on contingency. As Justin Scheck recently reported in The Recorder:

"That's a particularly stinging charge...since he and the lawyers who
employed him told courts that he was pa1d an hourly rate. That criticism
gained steam after a 1998 deposition by L.A. defense lawyer Marshall
Grossman, in which Torkelson admitted he received more than his hourly
rate in some cases, and no payment in ones where Milberg didn't get

I cringed when I read this. I have heard so many stories from experts about discounting their fees or forgiving the outstanding invoices owed them when a case was lost or when retaining counsel failed to collect their fees from their client. Reasons for doing this have included: did not insist on a contract; did not require a retainer, or had long ago exhausted it; did not want to offend the attorney or felt bad for him/her; and, even hoped for more work from the attorney in the future!

But as you can see, it is NOT just a matter of collecting payment due you for services rendered. Failing to insist on payment can be used to paint a picture of you as a "gun for hire" in the eyes of the court, attorneys, and the public at large. Not only could this run off potential clients and disqualify you in court, but it could result in criminal charges against you.

"...L.A. prosecutors, sources familiar with the case say, could bring
Torkelson into the current indictment by arguing that any improprieties
having to do with his payment arrangements are part of an ongoing
practice of perjury or obstructing justice."

If you state to the court that you are working on an hourly rate basis, being paid for your time and expertise, then have in place and use the standard business documents and procedures xpected for this billing practice. Insist on a signed contract, collect a retainer, and require payment of all outstanding invoices prior to issuing a written report or providing deposition or courtroom testimony.

(Note: This is a tactic sometimes used by opposing counsel:

"Mr. Smith, have you received payment yet from XYZ firm for your fees in this matter?"

"Not in full, no."

"So, Mr. Smith, whether you get paid or not depends on what you say here, is that right?")

If the case settles early in the proceedings and you are owed money, immediately take necessary steps to try to collect. At some point, you have to decide if it's worth going to extreme measures, but there are various options in terms of cost and risk. At a minimum, be able to show that you made a reasonable effort to collect your fees so that there is never even the appearance that you work on contingency.

This applies even if the retaining counsel's client loses or if the attorney can't collect from the client. This is irrelevant to you, as you are hired by the attorney and are an advocate for your opinion, not for the client. Using standard business procedures and enforcing them can protect your reputation, credibility and career.

As Scheck concludes in the article:

"But after Torkelson stopped his expert work -- partially, sources
familiar with his work say, because plaintiffs lawyers felt his
credibility was hurt by the accusations of being pa1d on contingency --
his slide toward ignominy began."

1 comment:

Chris Mercer said...

It appears to be difficult for someo experts to learn and to live the meaning of the word "independent."

Lawyers are, by definition, advocates for their clients. In that role, they will sometimes push experts to say things they think will help their position. Experts must learn, howver, that they are not client advocates, but advocates of their own, independent opinions. When an expert steps outside that independent role, he or she begins a slide down a long and slippery slope.

Mr. Torkelson's use of a "variable pay" arrangement was just such a slide. Intellectually, he may have remained independent of Milberg Weiss. The problem is, no one will likely believe it.