EXPERT   PAY   DISCUSSION

You May Enjoy Your Work, But Don't Work for the Fun of It — Make Sure You Get Paid!

A common refrain among expert consultants is, "How do I make sure I get paid?"

The most important step in getting paid is planning to get paid. Being compensated for your work is too important to leave to chance, hope or optimistic confidence in the decency of your clients. It's business, for goodness' sake!

Do attorneys like to sign payment agreements? Usually not, particularly plaintiff attorneys. But you should ask yourself why. If the fees are agreed upon, and you are obligated to do the work just as the client is obligated to pay for the work, why should putting that agreement in writing be a problem?

My recommendation is to use an agreement that lays out simply and clearly, at a minimum, your rates for review, deposition, court appearance, travel time, and expenses, as well as your required retainer. I also recommend that you include a cancellation policy so you are not left holding an empty bag along with an empty waiting room or office when deposition or court appearances are postponed or cancelled. There should be signature lines for you and the client and dates for both signatures.

In your engagement agreement, you can also choose to spell out your expected payment schedule and other details. You can specify additional elements as venue in case of disagreement, although some experts do not wish to bring up the negative.

Your engagement agreement can be called a Fee Schedule, Litigation Consulting Agreement or Contract, or it can be part of an engagement letter (see examples of engagement agreements in The Expert Witness Marketing Book).

The most important points in getting paid are:

1) Do not begin reviewing files until you receive a retainer for the estimated time of the review.
2) Do not deliver your written report until your invoices are brought current.
3) Do not leave your office for a deposition without having received payment from (usually opposing) counsel covering estimated testimony time.
4) Do not leave your office for a court appearance without having received payment from retaining counsel covering estimated testimony time and bringing all other invoices current, unless you have an established relationship with the law firm.

You will notice in my recommendations, (which are based upon many true stories with unhappy endings), the absence of the words, "having received a promise that counsel will have your check when you arrive to testify."

In working with our expert clients on their fees and collection procedures my policy is this: If you are assertive, you will rarely have to become aggressive. For most people, having to be aggressive is not a pleasant experience, especially when dealing with attorneys. Avoid this situation by handling the administrative, invoicing and collecting procedures of your practice in a business-like manner — that is, clearly, consistently, and as early as possible.

— Excerpted from The Expert Witness Marketing Book
by Rosalie Hamilton


Editor's Note: The preceding article stressed the importance of securing a retainer for estimated review work and getting paid in advance for deposition and court testimony. In response to the article, Alan D. Westheimer, CPA, CFE, a respected Houston expert and associate, was kind enough to send me his slightly differing views. I thought our communications were pertinent enough to forward to our readers (with his permission), along with additional comments from me.

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ALAN: Rosalie — If I took your advice about refusing to perform the variety of tasks you mention without being paid first I would rapidly go to the back of line amongst the qualified experts here. All that is nice and a good goal to shoot for, but when push comes to shove you have to do what it takes to get the job done, especially for your good lawyer clients. In, perhaps, 10% of my cases, I take the position you advocate, usually with the lower end of the cases on my plate. But for the other 90%, I take my chances to support my lawyer clients who, after all, are hiring me but not footing the bill (most of the time). Their clients or some nameless insurance carrier is paying. I have a few bad debts, but nothing like what I had in traditional public accounting practice. In the end, it’s a judgment call and no two cases are the same. I wish you would soften your stance and give more flexible advice. Best, Alan
Alan D. Westheimer, CPA, CFE

ROSALIE: Hi, Alan! It's nice to hear from you.
You may have missed one important clause in my article, "unless you have an established relationship with the law firm," which agrees with yours of "especially for your good lawyer clients."

My stance has formed as a consequence of hearing, at conferences, THE most frequently repeated complaint from experts as problems with getting paid. Some of the stories are quite sad, e.g., doing $10,000 of work and then getting stiffed. Other experts become so disenchanted they contemplate closing their practice and sometimes do.

I really appreciate your comment about your lawyer clients not footing the bill; it makes me realize I need to clarify for our readers. I try to be tactful in discussing plaintiff versus defense because I advocate splitting work equally if possible, but experts' tactics have to differ with the two sides. Defense attorneys have a good payment record overall, probably because they are often backed by insurance companies. Insurance companies nearly always pay, albeit slowly, but they do not like to do so in advance. Since they usually pay, I'm not as stringent in my recommendations such as requiring signatures and advance payment when working with defense.

Conversely, most of the attorneys who 1) don't pay at all, 2) pay months later, after exhausting collection efforts, 3) claim the expert took too long and reduce the fees, etc., are plaintiff. Plaintiff attorneys usually are footing the bill themselves, particularly if they are operating on contingency—running the risk of paying up front expenses that won't get reimbursed if the case loses.

I really appreciate your taking the time to write. I have heard you speak on expert practice management, and I respect your viewpoints. In fact, feel free to add any additional thoughts you have upon receiving this response from me. Regards, Rosalie

ALAN: Rosalie - Here’s a bit more. Credit decisions are business decisions, regardless of your public accounting specialty. My rules are (1) I ask for a retainer to be applied against my last invoice of about 20 hours work, ostensibly enough to cover preparation for and testifying at trial. But, I don’t ask for one from big public companies, nor do I ask for one if I have a solid relationship with an attorney and he asks me not to. I make these decisions on a case-by-case basis and go with my gut. (2) I try not to testify at either deposition or trial if I have a bunch of money out, although I won’t let a good lawyer buddy down. (3) What I tell the lawyer is “Look, if I'm owed a bunch of money and opposing counsel finds that out, he may use that to try to impeach me by implying I am not being objective out of fear I won’t get paid if I say something truthful, but negative, about your client, so the best way to avoid that is for me not to have any outstanding invoices at the time. Some of your client’s problems are unavoidable. This one is avoidable, so get me paid and we avoid it.” Sometimes it works, sometimes it doesn't, but it is effective.

In the end, you have to do your homework and trust your instincts. If you are suffering unreasonably high bad debts for litigation work, it’s your fault for making dumb decisions and you probably won’t do much better in another area of practice. For many years I owned and managed a 50-person, $5 million traditional accounting firm and, in my experience, the bad debt rate for litigation work is significantly lower than for traditional accounting work. If you are being asked to work for a plaintiffs lawyer you don’t know, it shouldn't be too hard to check him out amongst your fellow experts and lawyer buddies in your community. If he has a bad rep for not paying, you shouldn't have too much trouble finding that out. And, you can always ask for a bigger than normal retainer. If they won’t give you a retainer, they are not serious about the situation, so say no. — Best, Alan


Summary

As much as possible and as often as is reasonable, get paid in advance.
There are always exceptions, such as in a report yesterday from an expert who is getting stiffed because his retaining counsel (defense) is not properly handling his own clients, multiple insurance companies, who are fighting among themselves about percentage of liability.
In most cases, opposing counsel should pay in advance to depose you. One alternative is to get your retaining counsel's agreement to pay you if opposing counsel does not.
Be very diligent in protecting yourself when working with attorneys you do not know.
Don't bite the hand that feeds you. If you have worked successfully with a law firm, don't suddenly require safeguards that may not be necessary just because you are going to do so with new clients.

I hope this additional information helps you in instituting common-sense policies and procedures to ensure more effective and stress-free collection of your expert consulting fees.

Sincerely,
Rosalie Hamilton
Legal Marketing Strategist for Expert Consultants
Author of The Expert Witness Marketing Book

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Editor's Note: We received so many valuable and informative responses to this discussion that we wanted to share them with our readers. The responses are compiled (anonymously) below.


READERS RESPONSES

Alan's position is interesting and of course since it is his business that he's running, there are no wrong answers.  But my experience would not equate with his.  No matter the size of the firm, public or private, new or former case clients; my rule is the retainer up front.  I'll take the case but no conclusions are offered before the retainer.  There is always PayPal if the time frame doesn't allow overnight of the check. He is right about insurance companies being slow pay but they will cut a retainer, or at least that is my experience.  As far as the individual that did $10,000 worth of work and got stiffed; well da, I would hope that he is a better expert than he appears to be a business man. Our differences may well be in the type of cases and not necessarily the type of client.
— Computer Expert

Interesting. I've been testifying for twenty years. I don't charge or request a retainer. I have never been "stiffed." In contrast to all the lawyer jokes, I find counsel on either side to be individuals of integrity. Demanding up front payment sets a tone of mistrust. Think again.
— Anesthesiologist

Good advise to 'ALAN' your accountant expert; but as a Forensic-Scientific Consultant, in some 40 years of consulting, I have had only one court/collection incident. You have to determine and know who to trust. Prior to a deposition, by the opposition, I submit a copy of my 'Rate Schedule' to the attorney I am working with; and request that the opposition calling for the deposition agree to payment before I prepare and travel. In the Scientific field the consultant can only 'tell it as it is', anything else will lead to embarrassment in trial.
— Chemical Engineer

Thank you for sending me this newsletter. I do have a question for Ms. Hamilton. She refers to the "client" signing a fee or engagement letter. Does this mean you have the person who is actually paying your fees (the party and his/her insurer) or the party's lawyer sign the engagement letter? It would be nice to have the lawyer sign the engagement letter in addition to the actual payer, but I doubt that many lawyers would agree to pay your expert fees if the lawyer's client (the party) defaulted. I'd appreciate your thoughts.
— Estate Planner
**(See footnote for Rosalie's response)

Since we don't have a relationship with opposing counsel, I always bill in advance for depos and ask that they have the check ready at the time of the depo, with any extra time being billed. Most do, others mail it later. Recently had a case where the deposing attorney didn't have check at the depo and when we inquired about it after a few weeks, they said they were splitting it with 3 other attorneys, but hadn't worked out the amounts. I contacted our client and they got it paid via the insurance company. As for our clients, when they're slow in paying and I have a claim number or just know the insurance company paying the bills, I will contact the claims adjuster directly. More often than not they've not received my invoice and ask me to fax it to them. Usually paid within a week after that.
— Insurance Expert

I am writing as a result of your correspondence with Alan Westheimer CPA about payment in expert cases. I too am an expert — ... I too run into situations with being paid, but I believe I have solved this reasonably well.

First, like Alan, I require an up front fee that is kept until the finish of the case. I send a bill for work performed by me and DO NOT dip into the fee until it is finished. Then a refund any money left after the final billing is paid.

Second, anyone who does not pay in 45 days, I suddenly stop doing any work with them, and ask for money up front.

Third, I will not attend any court or deposition unless paid in advance based on an estimate of the time that might be expended for the task. Usually, I over bill on this since I will refund the excess. If a deposition goes longer than paid for I will stop the deposition until guarantees are provided.

One thing that I have started to do is do provide a rate sheet and wording that states "I agree to pay the above rates as stated. This document is then signed and returned to me. Attorneys understand contracts and this is as much a contract as can be drafted and signed. I have threatened to use this document before the Bar Association in a particular state, and compliance [has] been swift.
Obviously, I did not start this way, but circumstances taught me the path. Some lawyer clients have balked (especially insurance companies who do not like to pay in advance) The resolution of that issue is on a case by case basis.

When lawyers balk, merely ask them if they receive contingency fees or other up front money. This usually answers their question to me.

Another interesting thing I have found out is the location of the attorney. I have clients all over the country and for the most part NY and Florida appear to have attorneys that like to hold up payment or not at all. As a result I have raised my rates for those areas and if they pay that I have covered some of the losses incurred. It is just like credit companies, they lose by non payment and then raise the rates - I am no different.

Subject to that issue I am waiting to see if there is any company that will start following the credit path of payment by location, city, state, etc. They could get this information from expert just like credit companies but without using the names of the attorneys.

Another means I use is to look in the internet and check out the size of the attorney's office along with the number of people on staff. I have found that large offices pay, whereas the 1 or 2 man offices are less solvent and work on a hand to mouth payment by their clients.

So there you have another expert's opinions on the same subject with Alan Westheimer. I might suggest another venue for your support and/or advice. I have many continuing new clients who are amazed by my field of expertise. (at this time about 40 cases). There are organizations such as Bar Associations, specialty speaking groups, etc., who hold seminars for attorneys in Continuing Ed or just general information. Unfortunately, they appear to miss the boat for passing good information on. The reason as I see it is that they bring in speakers who are attorneys to talk to attorneys - rarely do they bring in experts to talk to attorneys. When they do bring an expert it may be on the subject of being an expert, but not necessarily on the subject of the expertise.

I truly believe there is a big market out there waiting to open the minds of attorneys especially with the not too usual expert's field. This may need more discussion.
Well there you have another person's thoughts hopefully it proves valuable.
— Building Standards Expert

Here is the bottom line in providing expert service. If the client cannot afford or is reluctant to pay a significant retainer against billable hours, that client will not be able or will be reluctant to pay your invoices. The retainer at least protects part of your fees. I require $5,000 up front. No retainer, no service. I have adjusted this down in rare circumstances when it appeared that my initial involvement would be less than usual, hours wise, but there is still a retainer to cover my anticipated fees. I developed the contract and retainer system after being screwed too many times by lawyers who have the dollar as a bottom line and no concern for professional honor. I used to operate on the honor system until it became clear to me that I had the honor, and some lawyers had the "system." This may not be the case in accounting matters, but I think it applies to most other fields of practice. Even if you successfully sue slick lawyers, they do not pay the judgment. Then you get a FIFA from the court to place a lien against any property they own, only to find that although they live very well, they have nothing in their name. This is the voice of experience.
— Police Procedures Expert

I wholeheartedly agree with your payment-in-advance stance. I do not open my computer for a client who has not paid an initial retainer in advance. Also, I will not send my final report until all fees are paid. And of course, that goes for depositions and trials too.

I guess you can surmise that I work mostly for plaintiff's attorneys. One small correction. Plaintiff's attorneys who work on a contingent fee basis don't usually lay out the money for experts. They go to the client for expenses; and an expert is an expense. The attorney goes to the client and simply says, "I can't win without this expert and she costs ..." I rarely have collection problems.
— Sociologist

Your discussion was first class. I have followed the rules outlined and had many long waits but was only stiffed once very early in my testifying career. Thanks for the information.
— Engineer

I have to agree with Alan. I take on cases before I'm paid and they usually increase my business. I have been burned recently by a lawyer (Robert Boyd) in Clinton, MS for $5,400. He has refused to pay for my services and will not respond to my certified mail. Any suggestions on how to get reimbursed?
— Engineer

Your advice is very sound.
— Ophthalmologist

Enjoyed the conversation between you and Alan. It's good to know people in different areas of expertise and hear what they do in certain situations. I do get my retainer up front and also have a statement in my Fee Agreement that states "All fees must be paid before oral opinion, written opinion letter or any work product is released" and under Court Related Services: "The attorney/client's account must be current of all pre-trial preparation, exhibit and examination charges prior to my testimony at trial/deposition." Also, "I retain the right to withdrawal from retention on any account that is not paid in full." So far, this has worked for me. The attorneys don't have a problem signing my fee agreement.
— Document Examiner

While cutting back my hours devoted to Obstetrics and Gynecology, I have pursued an active medical-legal practice since 1991. Now, for the first time, I am having a serious collection problem with the forensic practice. Our policy of requesting additional retainer before report preparation, deposition, trial or other out of town services has met with abysmal failure. Yet I continue rendering the services and watch my accounts receivable soar. I am eager to consider any reasonable advice or suggestions. Thank you!
— Obstetrician

If one does not obtain a retainer, they are not serious about their work. The lawyers respect money but as anyone else they WANT THE BEST for the money. One only needs to speak the truth and there is no difference in plaintiff vs defense cases, federal or state. Most of the doctors in my experience do not even bother with actually reading the entire case and studying the literature to provide a valid advice, and so they are not hired or paid little if anything—HMO vs fee for service.
— Gastroenterologist

Very good exchange! I have been doing expert work for longer than I care to think about, and Alan's advice is exactly correct. I appreciate receiving the newsletters. Thanks!
— Engineer

Great stream of thoughts, Rosalie. Keep 'em coming ...
— Engineer

I believe you are both right although my experience with lawyers has mostly been hit and miss at best. They are (the lawyers) for the most part in the business of extracting money from people. This they do in any way they can and they use the system to support their efforts. I for one will not budge without a hefty retainer. Perhaps this is why I am not busier than I should be, but when I am busy I am getting paid for it. It's a tough call.
— Marine Surveyor

I agree. The hard nosed pay me now or I quit is short sighted and not client friendly. A more balanced and informed case by case approach is better.
— Management Expert

I also have a clause in my standard retainer agreement that has the attorney hiring me acknowledge that, even though my bills will be sent to his/her client (or carrier) for payment, my contract is with the law firm, which ultimately is responsible for paying me regardless of what any third party may or may not do. If the lawyer won't agree to this (rarely happens), then I definitely will require an up-front retainer.

I almost responded to the earlier article, but then slacked off. But the communication you sent today prodded me to respond again. I very much enjoyed your earlier article, and I caught the phrase you included "especially for your good lawyer clients" which is my practice too — if necessary. However, you both missed two very significant points.

1) The word nonrefundable should precede the word retainer. If you are working with someone new, and the case settles and he "forgets" to tell you, you can be stuck with a desk full of completed work that your client can't use. Nonrefundable retainers hedge against trying to rush through a job to be accommodating and being the last to find out about the settlement.

2) Attorneys might expect a CPA to understand business, but I'm just a poor old academic. Worse, I'm a mathematician. I'm expected to be clueless about the arcana of invoicing. When I'm talking with someone new, I'm usually asked what my rates are. I always answer directly and add two things: I have a draft engagement letter I can send that summarizes my rates and the rates of my staff, and that we usually ask for a retainer so that we can get started. More than half the time, the tone of the conversation improves immediately because the attorney has discovered that he's hiring a business person, not a neophyte.

So I'm all for engagement letters and nonrefundable retainers. Both have helped my business — almost as much as your book.
— Statistician

This is great. [We] were just talking about this today. Thanks.
— Engineering Firm

Rosalie; we have not talked in a while but I am reading your letters with a great deal of interest, especially about the getting paid issues. I just concluded a plaintiff case that indeed had a retainer deposit and the billings going forward to trial were modest and well within the retained amount. Just before discovery cut off I was notified by opposing counsel for appearance on the last day of discovery. My counsel sort of panicked and forwarded 5000 pages of documents for review prior to the depo and I complied spending a lot of time to get ready. The depo was very thorough and without having read the material I could have looked rather ill prepared. Opposing counsel paid for my time in depo but the 14 hours of travel to and from his office was by agreement on record to be paid by my guy. Two days after the depo the case settled very favorably to our side. I presented a fair account of all my time but at the end had to settle for 50 percent of the outstanding amount. I was well covered by our engagement agreement and could probably have prevailed in a dispute but it did not seem to be worth the effort.

I am writing this off to experience but it is clear what needs to happen next time if such a situation comes up again. My attorney's line was that this was a contingent fee case and the settlement would cause him to come out of his pocket if he paid me the full amount. I, of course, countered that I was prohibited by law to provide contingent fee testimony and that in any event had no voice in the settlement amount. This to no avail and I eventually just went along and got it behind me.

I suspect the entire process and late timing on the documents was geared towards creating an exposure far beyond the retainer amount but I sure did not see it coming in the fog of the battle. I have always been rather laid back and not at all pushy about fees but it is clear that this is a more cut-throat arena than I am used to. My overall philosophy is that if you do the right job the money follows. That may be too simplistic in the expert world. I am therefore constantly updating my database in this area and your dialog with Alan was very insightful.

Otherwise things are going fine and we are adding a case here and there when they fit our expertise. Hope all is well with you.
— Engineer

I enjoy your newsletter. I am doing tons of expert work for attorneys.

I do not ask for prepayment, either. I have had great luck with all but one attorney over the last 6 years, and he does not send me anything any more. Billing after the fact allows me the freedom to discount as a promotional tool for easy cases, or to bill for going over specified time limits (like 2:30 instead of a 2 hour charge for a deposition).

My invoices range from $50 to $3000, so we are not talking about all that much money. If there is an outstanding balance when I am scheduled for a court appearance, I sometimes ask for the account to be brought up to date before trial.

Anyway, keep up the good work.
— Radiologist

Rosalie wrote:
The most important points in getting paid are
1) Do not begin reviewing files until you receive a retainer for the estimated time of the review.
2) Do not deliver your written report until your invoices are brought current.
3) Do not leave your office for a deposition with having received payment from (usually opposing) counsel covering estimated testimony time.
4) Do not leave your office for a court appearance without having received payment from retaining counsel covering estimated testimony time and bringing all other invoices current, unless you have an established relationship with the law firm.

— This is also the best way of never getting a client to return to you or to recommend you. In my twenty years of expert engineering consulting and witnessing this is the stupidest list of advice I have ever seen.
— Construction Engineer

One more point, if your written contract with the hiring attorney is proper and legal, and he/she has signed it, fear not!!! Find an attorney that is willing to sue and do it!! I have, I am, have won so far and expect to win again ... ps, when the lousy atty loses, they pay atty fees too. ... (over 100 cases, 3 lousy, non-paying atty attempts).
— Auto Expert

Great info. After having 213 cases in 35 states, I always get a retainer (based upon how much there is to review). Sometimes if I go beyond that retainer I will bill it out, for old and new clients. I never let it get to be too much though (however much you can afford to lose is a good rule of thumb). I always have each client sign a Contract as well. Sometimes they won't and I don't take the case. Sometimes they send a retainer without the Contract and I do the work while awaiting the signed Contract to be sent in, but will never go as far as giving a depo or trial without a good Contract.

On many occasions [my contract] has been the sole item that has been responsible for getting payments and ironing out any disagreements in rates, etc. In the event it comes to the point of collections, the Contract Venue is quite helpful and is what sparks the payment to come in as well. There is a Contract for Plaintiffs and a separate one for Defense counsels. Each clause has its own purpose, such as "Expertise" for those who don't pay using the excuse that you don't have the level of expertise they thought you had. This puts the onus of due diligence onto them and to agree you have what it takes ahead of time, and not come up with this excuse later just to fleece you out of paying your final bill.

Having been doing this since 1988, I've learned my lessons. I'm a very trusting person, but I learned long ago that you never know if a lawyer is one of the good ones or not (even if you check them out). Don't get me wrong, I got paid by a lawyer who sent me a check without even being hired for the job because he liked the assistance I provided to him over the phone! I've also got a policy of refunding any unused balance, which all experts should do as well. Thanks!
— Safety Expert

Stick by your guns ... your advice is right on. Alan may be a good speaker and a nice guy, but ... you have to turn a profit, which I do and did as a national partner with Laventhol & Horwath. "Go, Girl ..."
— Hospitality Expert

Interesting discussion. Most of the time I do not get retainers. I have not had collection problems. Basically I rely on the attorney. My position has always been that the law firm is my client and thus responsible for my fees. Consequently, I was disturbed to read the recently reported decision in Touchstone Bernays where the court held that the law firm was not responsible for the expert's fee. Any thoughts on this?
— Insurance Expert

I maintain an expert witness practice in the Los Angeles area as an adjunct to my core human resources consulting practice. I appreciate all you and your friend Alan have said about the tough business decisions involved in accepting expert designation. I would add that my Professional Services Retention Agreement is signed by the lawyer or law firm that retains me. I do not accept a defendant signing the agreement. I realize that one never wants to sue an attorney but at least by contract they are on the hook. As a practical matter, I realize that they are often waiting to get reimbursed by their client or by an insurance carrier but at the end of the day if the agreement is drafted and executed properly, they are responsible.
— Employment Expert

I find the newsletter very valuable. Regarding retainer and other fiscal issues, my own experience is that I must adapt to the market place I am in and also to my own psychology. Things that work well for many or most experts just do not work well for me because of my personality. I have found peace in the fact that I lose some business and am not paid occasionally because I operate within my psychological and moral comfort zone. But peace of mind and personal comfort & delight in performing one's work are values also. However, I would never contradict those of you who know better than I do and whose advice I try to implement as best I can.
— Document Examiner

I disagree with Alan. I have been doing this work for 35 yrs. If a lawyer calls with a case I talk with him about it and if I agree to review it we require a retainer. After I review the case I send him a letter telling him I have reviewed his case and my billings are enclosed & I will be happy to give him my opinion but only after he pays my fee and we receive the check. This pertains to all attorneys no matter how many times they have sent cases. This now works 99%of the time. Most attorneys explain this to their clients or should!!!!!!!!
— Neurosurgeon

Much good advice. I have a few things to add.

It's been years since I've had a bad debt and the reasons are simple.

1. Bill every month and keep them smaller and more digestible. Bill after each work segment is done.
2. I work all over the country so checking out someone locally is not an option. I do check all out on Martindale Hubbell's website and if they aren't listed I proceed with great caution. Most always it comes out in the initial call if someone has little or no budget and when that happens, as it did yesterday, I make it abundantly clear what my charges would be.

3. Lastly, and I think most importantly, I use a fee agreement that must be signed by the retaining attorney indicating his responsibility to pay me and the cost of collection if he does not.
— Occupational Safety Expert

** Rosalie: When I refer to the expert’s client, I am referring to his attorney client. Due to issues of objectivity, I recommend that you not refer to the litigant (the party who engaged your client as his attorney) as your client.

(I also recommend that you not refer to your attorney client as “your attorney,” because he or she is not, in fact, “your attorney,” but your attorney client, or your retaining counsel or your client. If you stay in the expert witness business long enough, the day may come when you need the services of an attorney, who will be “your” attorney, but that’s a discussion for another day).

I prefer that your attorney client sign your fee agreement, but he might pass it on to his client (litigant) to be responsible instead. Also, sometimes they both sign. One very successful financial advisory consulting firm requires the signatures of both the attorney and the attorney’s client (Their Engagement Letter form is included in The Expert Witness Marketing Book).

The important thing is to be mindful of who the responsible party is in each situation and act accordingly, as I pointed out in my earlier response. A prime example would be to be leery of accepting as the responsibility party the debtor in a bankruptcy case (Don’t laugh — I never make up examples; I don’t have to.)

Rosalie Hamilton

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