See Rosalie in Vegas (and a rare opportunity)

Are you going to the Forensic Expert Witness Association (FEWA) Annual Conference, "How to Be an Effective Expert Witness," in Las Vegas this month?

If you are, don't miss the pre-conference seminar, "Expert Witness Marketing Secrets," presented by Rosalie Hamilton and attorney Jim Robinson. They are looking forward to revealing the secrets behind successful expert witnesses and will cover topics:

• How Attorneys Dig Up Dirt on Expert Witnesses
• Expand Your Practice:  Succeed as an Expert Witness
• Expert Websites
• Expert Billing & Collecting

And the best part? At the end of the day, Rosalie will open up to any question you want ask about this sometimes crazy business - a rare opportunity.  Information on this pre-conference seminar can be found on page two of the conference brochure.

Let me know if you're planning to attend and Rosalie will keep an eye out for you!

Tracking (and Billing) Time

I've been reading numerous articles and posts lately about how much billable time is not billed. Expert consultants that bill by the hour (which should be most, since billing based on outcome is unethical!) are definitely at risk. In our fast-paced world of constant email, phone calls and other interruptions, it is easy to neglect writing down that fifteen minutes working on X before the next interruption. Later, you may not be sure or may think "it wasn't enough to worry about" and so on. But that time adds up and let's face it, your time is money.

I know there are many time-tracking tools, both online and in billing software. Are you using any? What would you recommend to other experts?

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.

President Bush and Expert Witnesses

Here's one to make you think: As reported in LegalNewsline.com President Bush just signed an executive order that prohibits expert witnesses being paid on contingency.

Even if not legislated, hasn't the avoidance of contingency payment been understood, accepted, and practiced by experts for quite some time? Opposing counsel has always been willing to tear up an expert witness for such an arrangement, so most retaining counsel and experts have avoided the practice. (Also, I thought it was already illegal in some states.)

Am I missing something?

Requirements for a Successful Expert Practice

This article was written by attorney Edward Poll of LawBiz.com and actually addresses attorneys and what he has discovered every lawyer must do to be successful. But I think if you substitute "expert" for the word "lawyer" in each of his recommendations, his wisdom applies equally well in most cases (but not all - for example, experts should NOT "sell solutions" as suggested in number three on his list!).

Read his quick list of ten requirements out and see what you can apply to make your expert practice more successful.

Should Experts Charge When Trial Date Changes?

An expert witness recently emailed me with the following question about billing:

"I have been an expert in many cases over the last 10 years, but it is usually a small portion of my annual revenue . . . In the last three years the opportunities have increased, [leading to a few basic questions].

Is it customary to bill clients for the days committed to for trial dates when the trial is subsequently cancelled, settled or postponed?

If the dates are locked on my calendar, I do not schedule my regular consulting business events, but at times they cancel only a few weeks or less before the scheduled trial. This causes issues with revenue of course as I typically schedule events in my business 6 to 8 weeks in advance.

I normally do get a retainer, so I do have the money, but have refunded clients in the past. What do the attorneys expect? What do other experts do? Do I disclose this policy at the time of engagement?"

My recommendation: Yes, you bill for that time and yes you disclose your policy in the engagement agreement you have your attorney-client sign prior to beginning work. You are giving up billable hours you cannot get back and should be compensated for that time. I would also urge you to set your retainer high enough to cover a half-day of testimony at a minimum.

Okay experts - what are your thoughts? How do you handle this situation? Have you received any backlash?

One Expert's Method for Handling a Billing Dispute

Attorneys and experts disagree on payment - nothing new there. But this expert refuses to take it lying down in a battle with the Department of Health and Human Services in Arkansas. His bill was for $165,000 originally, and more than $200,000 after late fees and charges for the additional documentation they requested were added; the state claims that $60,000 is more than fair.

As Charlotte Tubbs reported in the Arkansas Democrat Gazette article "Agency, witness tangling over pay":

"Quietly, a two-year battle brewed behind the high-profile court case between the department and the witness it hired, George Rekers. The dispute involved department requests for billing explanations, Rekers' accusations that the department's attorney behaved unethically and department accusations that Rekers conducted unnecessary research."

The whole article is quite interesting, with other unrelated bits of information such as how that department chooses experts for litigation:

"Professional and academic requirements are case-dependent. 'There are times when academic skills are important and sometimes experience is more important,' [Health and Human Services Department spokesman Julie Munsell] said."

I wonder how this will affect the expert's reputation with other attorneys? With the court system in general? If he gets paid, will it be worth it?

The Billing Time Song

I laughed out-loud at this spoof of Cyndi Lauper's "Time After Time" song on YouTube. Called The Billing Time Song , it was a welcome moment of lightness in what has been a harried week preparing to go out of town. Thanks to Neil J. Squillante at TechnoLawyer for the heads up on this video.