Following Rosalie's June newsletter article, "How Much to Say in the Initial Inquiry Call," several experts sent me their own "initial call" procedures. Here is one so clear and comprehensive, I wanted to share it:
When a new attorney calls me and tells me general information about a case he has, I listen politely, I take notes to protect myself, and then I offer to send the attorney a copy of my CV, my Rule 26 disclosure, and a standard copy of my retainer agreement. Since the attorney calling always wants to know what my rates are, I simply tell them I will forward the retainer agreement, and all costs are fully disclosed. I then email all the documents to the "new" attorney.
My retainer agreement not only lists the fees and scope of my work, but I also have a clause (in bold) that expressly forbids the attorney from disclosing me as an expert witness if the attorney has not retained me. This happened many times in my early career, and that is why I put it into my retainer agreement. The clause also states I will take action against the attorney if I am listed without being retained. This clause has stopped attorneys from listing me as expert without retaining me. In addition, I have proof that I sent them the retainer agreement, thus I know my clause has been read. [editor's note: see other experts' experiences on being designated without permission in this past discussion.]
I never, never offer an opinion of a case based on information given to me by the attorney. On the initial call, when asked my charges, and if I think I can help them, I simply reply that I cannot determine the cost until I have seen the documentation, and that I do not know what my final opinion will be until I have reviewed all documents and have performed my analysis. I do tell them I've done this for many years and I work quickly. By seeing my Rule 26, they can view the types of cases I have testified, and who the hiring attorney was. That lends to credibility.
Over the years, I have found the really smart, professional attorneys will not try to solicit an opinion from an expert unless the expert has done their own investigation. And since my retainer agreement loooks just like an attorney's retainer agreement, a good attorney will respect that the expert will not work for free. I have found that the more professional I am, the more I am respected. I know that is a hard act to balance when you are new and trying to drum up business, but it is imperative, in my opinion, to start out highly professional, with stated fees and conditions prior to offering an opinion and to stay that way throughout your career. There will always be attorneys out there that are trying to get something for nothing. That is not the type of attorney you want to work with anyway.
Wise words from a seasoned expert.
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2 comments:
My firm provides expert testimony nationwide about legal fees. We follow similar safeguards -- and we're lawyers -- but we recently had a bizarre experience with Zurich Insurance in Texas. We provided a proposal and fee quote, they asked us to hold the trial dates, but stalled in paying our initial fee or signing the contract. We found out later that in the meantime they had not only filed a designation stating we were retained to testify, but including two pages of fake "opinions" including topics we don't handle and affidavits by their lawyer attesting to how busily we were working away on the project. When we demanded that they retract all this, they refused and purported to fire us. We've sued them for our full fee (as provided in the proposal and draft agreement), plus punitive damages. There's a useful statute in our home state prohibiting using someone's name without their written permission, for example.
They don't deny what they did -- they claim it's no big deal because it was only temporary or they didn't officially retain us, etc.
John, it would almost be funny, if it weren't so egregious, the attorneys for Zurich trying this stunt with experts who are lawyers! If they continue to stall paying you (and I predict they will), I hope you will expose to the court the false designation and affidavits.
Rosalie Hamilton
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