Engagement Agreements Between Experts & Attorneys

We frequently receive questions about retainers, contracts, billing, collections, etc., from experts. Some experts are hesitant to require an engagement agreement from their attorney-clients for fear of driving them away or appearing too demanding or some such idea.

Look - you are operating a business, just like your attorney-client. They utilize standard business practices, including engagement agreements, and so should you. I could go on and on about this, but there's nothing like hearing it from the horse's mouth. I found three different resources where attorneys themselves give advice to expert witnesses on this very subject.

In the presentation, "How to Be Picked, But Not Picked Apart" at our Tampa seminar, attorney Lee Gunn briefly touched on this issue. Here are some of his comments:

Communication, including the terms of engagement, scope of engagement, required retention, billing practices, frequency, payments, interest rates are all important elements of what you do ... a reasonable letter and agreement signed by the qualified agent of the hiring party is appropriate, should be asked for, is not offensive and avoids the angst and agony of confusion and surprise.

Attorney Rhoda Faller gives advice to experts regarding fees in the e-book, Expert Witness Preparation for Deposition and Trial. Included in her recommendations is this list:

Be clear as to your billing. It should be established, in writing, what your fee is for:

- Reviewing records
- Writing a report, if one is requested
- Your deposition or trial preparation time, including meeting with the attorney
- The actual deposition or trial time
- Any minimum time to be paid for a deposition or trial
- Travel time
- Who will make the travel arrangements
- If there are any special travel arrangements you require
- How much notice you require or cancellation of a deposition or trial appearance before you require payment
- Amount of retainer you require
- When you require a retainer
- If you require payment in advance for a review of records, a deposition, and trial
- How far in advance you require payment

She also advises, "Requiring upfront payment is not a bad idea unless you know the attorney well and have worked with him/her before. You do not want to go chasing your fee." I couldn't agree more!

And if you're still not convinced, here's what Steven Babitsky, Esq., James J. Mangraviti, Jr., Esq., and Alex Babitsky, MBA, have to say on the subject in The A-Z Guide to Expert Witnessing in the introduction to the chapter on fees, billings and collections:

An expert witness is entitled to be paid a reasonable fee for her time and expertise. (As an expert, an individual is paid for her time, not for her testimony.) The successful expert understands the engagement process, how much to charge, what to charge for, and how and when to collect her fees.

Experts should have the key financial terms of their engagement clearly laid out in writing before agreeing to work on a case. (Appendix R contains sample fee schedules, letters, and agreements.) These documents need to specifically cover terms including fees (including cancellation fees), billings, retainers, travel, expenses, and interest for overdue accounts.

For additional opinions and advice, you might take a look at our previous discussion on this issue in the free special report, Expert Pay Discussion, where many experts shared their opinions and best practices.