Take a Lawyer to Court?

We've been covering the various business practices experts can use to ensure that they are paid by their retaining attorney clients for their services. But what if it's too late to use prevention methods? What if, in spite of it all, they still refuse to pay?

Experts relate little success in reporting this treatment to the attorney's bar association. And I would be leery of suing an attorney, although at least one attorney came out ahead by taking counsel to Small Claims Court when they refused to pay his bill. The attorney agreed to use the expert for all of his cases where that expertise was needed if the expert agreed to settle for one-third of the award granted by the court. He agreed and the attorney kept his word.

Others have found that third-party collectors are sometimes more successful in collecting monies owed than the expert himself. But this is no guarantee either.

I'm hoping some of you readers can help me respond to the question I received below by sharing what has or has not worked in your practice.

"At the present time I am dealing with an attorney/client of rather dubious ethics. His office had contacted me and after I learned of the particulars of the case, I chose to take the case. A review of the Martindale website indicated that this man is an AV-rated attorney. My history with AV-rated attorneys throughout the USA is that they tend to give superb direction, they pay promptly, and that there is transparent two-way communication.

This client retained me in a defense case. The evidence against the Defendant was examined by me and it was my professional opinion that the Defendant could not have done what he had been accused. I was prepared to testify at a hearing, but due to some "legal maneuvering" (not a Daubert or Kumho challenge), I was prevented from testifying. The actual rationale for this apparent suppression has NEVER been made clear to me.

When I invoiced my client for billable hours and expenses beyond the retainer, the net result has been six months of NO COMMUNICATION from him. Multiple certified letters, faxes, and telephone calls have been ignored. His excuse was that, since the outcome of the hearing was not favorable to the Defendant, the Defendant didn't pay him. Therefore, my attorney-client felt justified in not paying me. (The Defendant's name is NOT on our contract.) The sum owed is significant for a small business like mine, yet this sum is "budget dust" for the attorney-client.

This attorney-client is about 200 miles from my location, so I have been exploring ways to extract the delinquent funds from him. The only meaningful advice that is likely to get his attention and/or impact this DEADBEAT client is to sue this fellow in my county/venue. While I have NO EXPECTATION that I WILL EVER be paid, this will force the client to take time to mount his defense here. It is the principle of ethics/fair-play that drives me. No one that I regularly do business with would ever knowingly do this to an expert.

I have indicated to my local attorney-clients that, in lieu of receiving any funds, I'd like to obtain an ethics or a fraud conviction against this client in order that the State Bar Association can REVOKE his license to practice law. In short, no human being should ever be subjected to this alled "Man of Law" again.

I have had many positive experiences providing a wide range of consulting, expert witnessing, investigative services and litigation support for clients throughout this country. Perhaps I was overdue for an experience like the one described here. If other experts have had similar experiences in dealing with INCOMMUNICATIVE DEADBEAT clients, I'd be very interested in how these incidents have been handled."

Can anyone help this expert with creative resolutions or suggestions?

Experts Share Their Experience, Advice, and Best Practices

We love the feedback we receive from our readers on all subjects relevant to our readers. In fact, last year one discussion about engagement and billing practices (basically about getting paid!) created such a response we made a free special report out of the disagreements and feedback.

This proved to be so helpful to so many of our clients and readers that I have compiled some of the feedback we have received in the last six months, addressing many issues of concern to expert consultants to the legal industry.

*Editor's Note* Due to the unique nature of the work undertaken by expert consultants to the legal community, we go to great lengths to protect the confidentiality of our clients, readers, members, and associates. To that end, we have disguised the identities of the experts who contributed tales of their experiences, their heartfelt recommendations, and successful 'best practices' .

EXPERTS SPEAK

"I have run into a few [XYZ industry] experts who appear more or less with the 'red light of prostitution' over their heads. A few have falsified their credentials, which, in an endeavor that requires getting at the truth, is a huge non starter.

Most of the lawyers who have contacted me for services take the time to feel me out and learn about my background. That courting process is always interesting and it is important to be candid without over-selling oneself.

One lawyer was disappointingly overly dramatic on hearing my fee, which he declared indecent, although it is clearly in mid-range. Opposing counsel hired me through an associate so I got to work on the case anyway, which was settled out of court.

On advertising oneself as an expert, I think it's all about how you present yourself. About a third of my work has come through the website. I've had several law firms call me and compliment me on my credentials asking for a CV, but most of what I am currently working on has been through referrals from other law firms." - Technology Expert

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"We must always remember that it's the attorney who wags the tail...if they permit questionable 'experts' then they are equally to blame for misconduct. A reputable expert/professional will not buy into such practices." - Hospitality Expert

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"Thanks for the articles and discussion on retainers and up-front payment. Very good advice.

If I may, I'll mention that applying retainers to the last bill (instead of the first) requires some bookkeeping sophistication to avoid a cash crunch. Some newer/smaller practices may spend the retainer without knowing it, and then find themselves short when the case ends earlier than expected (i.e., settlement) and they are asked for a refund. This isn't a problem for careful operators, but the uninitiated can get hurt. 'Cash Reserve' should always be at least equal to 'Retainers Payable'." - Engineering Expert

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"A fascinating subject to me is, how does an attorney handle a deposition of an expert who flatly says his client is 'malingering'? I have read some of those depositions and it is interesting to see the techniques they use to discredit the expert. In one deposition against a fine expert who said flatly that the patient was malingering, the attorney attacked the translator and complained that the doctor got it all wrong because the doctor didn't speak the language! The doctor replied that the lawyer should be ashamed of being racially prejudiced." - Medical Expert

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"I have one additional suggestion on attire when going to see an attorney for the first time. I always ask how they dress in their office. I learned this the hard way when I traveled to the heart of Texas in mid-summer wearing a suit and tie, only to find that their dress code was business casual - golf shirts and cotton slacks. They had meant to tell me this, but overlooked doing so.

I have found that even big law firms in big cities like Chicago can be full-time business casual. And until one physically visits, it may be difficult to define just what they mean by 'business casual'. Further, the definition may change with the season (where they have seasons), and may differ for men and women. Ask first, and you will not be overdressed or underdressed.

If you are unsure, overdress." - Insurance Expert

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"The fact of the matter is that in [my industry] we have one or two who are known to be hired guns and are willing to say whatever the client wants them to say. Prostitution is a fact of life. As long as there are unethical lawyers we will have unethical "experts". The problem with shutting down either of them is the issue of who is to make the decision about who is the good guy and who the bad.

Bottom line: Each of us must take a good hard look at the face in the mirror each day and truthfully answer the question: Did I do the right thing yesterday?" - Transportation Expert

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It was from years of hearing questions about issues just like the ones commented on above that prompted Rosalie to write The Expert Witness Marketing Book and to eventually develop The Advanced Marketing Program for Expert Consultants

I hope you found some of these comments helpful. Please post you own comments about this (anonymously at your discretion).

Experts and the Media: Kenneth Lay Expert and Expert Under Cross

Two articles I read this week intrigued me. After the shocking news of Kenneth Lay's death yesterday, Dallas Morning News columnist Cheryl Hall interviewed Dr. Chris Barry, an expert witness in Mr. Lay's criminal trial. (You may have to register to access the article, but it's free) While fascinated by his perspective and opinion of Mr. Lay, I also wondered about the implications of his words appearing in the media.

While being quoted in the media can be a highly effective marketing tool by increasing an expert's visibility and credibility, experts should always remember that everything they say can come back to haunt them. Do you think anything in Dr. Barry's comments would make an attorney less likely to hire him or has the potential to be twisted by opposing counsel to discredit him?

The second article was just fun to read. Sharon Gaudin of Information Week reported on a defense attorney's failure to "rattle" a computer forensics expert. It's worth looking at just for expert Keith Jones' composed responses to the aggressive cross-examination, but my favorite section of questioning was described by Ms. Gaudin like this:

At one point, Adams laid out a scenario in which someone could have created a backdoor in the UBS system, and then deleted it before a backup was done to capture it. When he asked Jones if he, personally, could do such a thing, Jones replied, "I could do a lot of things. That's why I'm hired to do the investigation."

As much as I enjoyed the article, I'll ask you the same question I did about the other article - will this media coverage help or hurt Mr. Jones as an expert?