Initial Inquiry Call from Attorney

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.

Getting Paid for Your Work - Know the Local Statutes

As you may know, we have had an ongoing discussion about experts getting paid. How do you make sure you are paid? Should you require a retainer? If you aren't paid, should you sue the attorney? Can you refuse to hand over your expert report unless you are paid? Can you/should you require payment for services rendered prior to participating in a deposition or testifying in court?

In a recent email on this subject, an expert in California wrote, “I found out a few years ago that here in California, the attorney requesting the deposition is not required to pay the expert a week before or even an hour before!”

This was new to me, so I checked with Jim Robinson, an attorney in California and president of JurisPro Expert Witness Directory. He emailed me back with the applicable section from the California Code of Civil Procedure 2034.450, which says:

a) The party taking the deposition of an expert witness shall either accompany the service of the deposition notice with a tender of the expert's fee based on the anticipated length of the deposition, or tender that fee at the commencement of the deposition.

b) The expert's fee shall be delivered to the attorney for the party designating the expert.

c) If the deposition of the expert takes longer than anticipated, the party giving notice of the deposition shall pay the balance of the expert's fee within five days of receipt of an itemized statement from the expert.

The requirements for payment vary from state to state. As such, it is important for you to investigate and understand the applicable standards and laws in each state for which you might be called upon as an expert. It is also wise to double check any information you may hear from fellow experts, or even attorneys, regarding payment for your consulting and testimony.

Just as your CV,business cards and stationery, and website are key to establishing a successful expert practice, so are your engagement agreement, billing practices and collection policies. The more you know, the more you can do to protect your practice and successfully promote your expertise.

Caution to Experts Who Discount Their Fees

In our recent discussion about collecting fees owed from attorneys, several experts reported instances in which they ultimately accepted a percentage of what they were owed to get at least SOMETHING. In a recent blog post, "Contingent-fee experts?" at PointOfLaw.com, attorney Ted Frank explains why this might not be a good idea.

The key to avoiding getting into this situation is to work, as much as possible, against money already paid, whether called retainer or pre-payment for expected time in deposition or court. We have horror stories, such as an expert canceling appointments and flying across the country, whereupon the case settled and he was paid nothing, "because he didn't testify." So for an expert to be asked to reduce his already earned and owed fees does not, unfortunately, surprise us.

Don't let yourself get into a situation where you feel you have to discount your fees.