Terry W. Griffin and Tyler B. Mark
On an annual basis we are approached to take on a handful of expert witness assignments but only see two or three all the way through. Yes we would consider taking on more cases. Cases we’ve worked on are usually a lot of fun. In each case, our client is typically the attorney rather than the plaintiff or defendant themselves. “An expert witness is a person engaged to give an opinion based on experience, knowledge, and expertise. The overriding duty of an expert witness is to provide independent, impartial, and unbiased evidence to the court or tribunal.” Sometimes after chatting with a potential client we’re not retained, i.e. selected to be their expert witness; and that's usually a good thing because the sooner we decide not to work together the less effort that is exerted from all parties. Sometimes we are selected, receive retainer, and we proceed. About twice a year this arrangement works out reasonably well with our providing services and receiving compensation. The initial conversation is rather quick usually less than 30 minutes so no big deal for time commitment. If a followup conversation is necessary before commitments are made, we usually devote some effort (maybe 2 to 3 hours) in collecting background information from a variety of sources. We use the term "invest" since we do not get compensated for these hours especially if we do not accept the client’s invitation; but these investments of time and effort are a part of the fixed costs of doing this type of business and required due diligence. During this phase we sometimes decide we are not interested in the case due to the nature of the issue or if we feel that we cannot be helpful. By the end of the second conversation, we have likely decided if we want to work together and an agreement is entered into. The agreement includes scope of work, retainer amount, hourly rates, possible report parameters and/or additional case details. Rates may differ for reviewing discovery, reading depositions of witnesses, conducting analyses, writing reports, being deposed, and giving testimony. Other than accepting the invitation, providing service, and receiving agreed-upon compensation, the second best scenario is deciding not to accept the invitation early on in the process. Several other scenarios exist in between these preferred ones. Some less desirable scenarios include:
Client verbally agrees but never sends retainer or discovery for several weeks or months or sometimes ever. Recently, it occurred to us that we may have been exploited by the legal team “taint shopping”; when the legal team keeps the expert at arm’s length so that competing legal team cannot retain that expert especially when individual experts have unique skill sets important to the specific case.
Client replies with an attempt to renegotiate a lower retainer and/or hourly rate. This usually occurs a couple weeks after the expert was expecting retainer payment.
Client does not send retainer payment but does send discovery with some reasoning for why they are unable to pay at that time, but expecting services to be rendered.
A clear pattern exists for expert witnesses not receiving payment for their services. The above-mentioned scenarios happen more frequently than we’d like to admit; but with enough experience the associated red flags can be discerned early so that we know when to walk away. These scenarios become familiar enough that it seems some clients follow a strategic formula to wear down potential experts; although at times the backstories seem plausible. Regardless, it is important for expert witnesses to recognize not only their value to the potential case but their own costs of doing business. These costs of doing business equate into some minimum retainer such that anything lower is no longer worth the effort required to initiate the project.
These are our viewpoints based on first-hand experiences and perceptions; and possibly incorrect therefore we’re open to suggestions, corrections, and discussion.
Terry W. Griffin and Tyler B. Mark
Dr. Terry Griffin is on faculty at Kansas State University
Dr. Tyler Mark is on faculty at University of Kentucky