Wednesday, May 30, 2007

Attorney Refuses to Pay Expert for Deposition

Payment for expert consultants to the legal community is an ongoing issue (and one we addressed in "Expert Pay Discussion"). Here is the most recent story I've heard:

Hi Meredith
I have a question for your readers: Prior to giving a deposition I always ask for a payment to cover my time and expenses, refunding any extra amount. I recently had a problem with a client who balked at this and said he would "personally" insure I was paid on time.

Well that was January and still no payment -- a few weeks ago they (the deposing attorneys) claimed never to have received the invoice -- an old scam I've run into many times in my consulting career. My question is, if I don't receive the up front payment, do I have the right to refuse to appear at the deposition, especially if I've been subpoenaed to appear?
The subpoena in this situation complicates matters in my mind. Any advice from the trenches?


Roger L. Boyell said...

Timely message. For a prospective dep TODAY I had requested, by e-mail and telephone, a (new) client's check (amount to cover estimated time and expenses) sent by overnight courier if necessary and in my hand, before I committed to interstate travel. It did not arrive by last night, so I canceled the round-trip reservations. The attorney is most perturbed, but deadlines have to be real deadlines. I offered to be deposed by telephone.

Anonymous said...

When being deposed, I make it clear that they must show me the blank check before proceeding with the deposition. If they tell me to bill them for it, I get up and walk out. I believe in California, the Code of Civil Procedure requires payment no later than 72 hours following the deposition. I had one instance in which the deposing attorney did not have enough in her checking account to cover the entire amount and told me to bill her for the balance. When the check did not arrive in 72 hours, the attorney I was working for called and told her he would be filing sanctions. She paid the next day via overnight mail.

Sheila Lowe said...

I require payment for 3 hours of testimony 10 days in advance, refundable if the depo is cancelled. Two days before the scheduled depo, if payment hasn't been received, I send the deposing attorney a fax, stating that since I have not received their check I assume my testimony is not required after all. I accept credit cards or PayPal, which allows them to make payment at the last minute.

Michael M said...

Make no mistake, DO NOT IGNORE A SUBPOENA. If you have been subpoenaed and want to avoid appearing, the proper course of action is to file a motion for a protective order. Whether or not you can refuse to be deposed without payment is likely dependant upon whether or not the applicable rules of civil procedure provide for payment. If it is a federal case, the federal rules provide for payment of an expert if the opposing party demand. I suspect that no judge will order payment in advance, but at least you would have a court order directing the opposing party to pay you for your time. Then, when they don't pay, you can take it back to the judge to enforce the order.

Anonymous said...

Re Roger Boyell, Well done for being assertive and businesslike! If the attorney was not willing to send payment to secure your deposition arrangements, what do you think the odds are that he/she would have paid AFTER he/she already had your deposition?
Rosalie Hamilton