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The biggest problem experts have in dealing with attorneys is ensuring they get paid for services rendered. There are several steps an expert can take to improve the probability of being paid. First, it is not unreasonable for an expert to request and maintain a reasonable retainer during the pendency of the case. The retainer should be sufficient to minimize the potential loss. The retainer can be applied as a credit to the last bill in a matter. If an attorney is reluctant to pay a retainer, you can conclude he will not be a reliable client.

It is important for the expert to bill regularly and to ensure his or her bills are paid promptly. If an attorney fails to regularly pay his bills, you should let that attorney know you will not expend significant time on the case absent payment in advance. It is important for the expert to bill promptly when asked by the attorney to do so. For plaintiff's attorneys handling cases on a contingent fee basis when a case is settled, your expenses as well as other expenses come out of the client's share. All such expenses must be posted and charged to the client prior to the date of final distribution. It is the attorney's responsibility to notify the expert the case has been settled and that he needs a bill within a prescribed time period in order for it to be paid. It is the expert's obligation to make sure the bill is promptly submitted. It is not uncommon for attorneys to refuse to pay experts that submit bills after the date of final settlement.

Another common problem with billing occurs when the expert gives a deposition for which the other side's attorney is responsible. I have often heard experts complain of difficulty collecting from an attorney responsible for deposition charges. Keep in mind your contract of employment is with the attorney that hired you. He or she is responsible for all time you bill on a particular file. It is your attorney's obligation to pay you and in turn it is your attorney's responsibility to collect deposition monies from the opposition. When I am in a situation where the other attorney is responsible for deposition charges and my expert agrees to bill that attorney directly, I advise my expert to notify me if the bill is not paid within thirty days. I promptly notify my opponent that if the bill is not paid promptly, I will either delay paying the other side's experts for alike period of time or pay my expert and commence a small claims court action against my opponent. This is an issue you should work closely on with your lawyer. Your lawyer should be cognizant of his or her responsibility and not merely brush aside your concerns with the claim "nothing can be done."

Many experts use written agreements with hiring attorneys to detail the terms and conditions of the relationship. Although such an agreement can be beneficial to the expert, it can lend to the impression that an expert is merely a hired gun. You should carefully consider the advantages and disadvantages.

Establishing an hourly rate for expert services is an important decision. The higher the hourly rate, the more an expert appears to many jurors as a hired gun. In many communities high hourly rates are not received well by juries. For that reason, I prefer hourly rates less than two hundred dollars an hour. I prefer that my expert put more time in and change less per hour from the standpoint of jury appearances.


This is the first in a series of articles by John C. Cabaniss, Esq, (414) 278-6066, on working with attorneys.