General Practice, Solo, and Small Firm Division
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WINTER 1997 ISSUE
Two money questions often arise when dealing with experts: Can their fees be kept under control, and can clients be expected to pay those fees up front. The answer to both questions—YES!
In the December 1996 issue of the ABA Journal, lawyer Susan V. Saladoff, who represents plaintiffs in product liability and medical malpractice cases and thus deals with expert witnesses on a regular basis, says that too many lawyers pay experts’ asking rates for their services instead of bargaining with them. Rather than agreeing to an hourly rate, she offers experts a flat fee for services such as certifying the merits of a medical malpractice claim.
Before you search out an expert, think about the amount of preparation time you think the case will require from the expert, and the level of involvement you expect the witness to have in various stages of the case. Do a cost-benefit analysis based on what the expert’s work and/or testimony has to offer your client. Then, ask the expert about fees and payment arrangements, keeping in mind that most experts will want a retainer.
Depending on the type of case, you may be able to ask for a preliminary opinion or appraisal before extensive work is done. Some experts will do an appraisal for a fixed fee. Another technique to keep costs down is for either the lawyer or the client to go through the material to be reviewed by the expert and highlight the relevant information. This is especially appropriate if the client is particularly well informed about the specifics of his or her case.
While many law firms are willing to cover the costs of expert witnesses and hope for reimbursement out of the winnings, it is not uncommon for lawyers to ask clients to help pay the costs up front. Saladoff is willing to reduce her contingency fee percentage when clients bear those up front costs. While she may not get as much money in the end, she avoids exhausting her resources during the case.
While expert witness fees may be recoverable from the opposing party, lawyers shouldn’t bank on it. Clients need to be prepared to pay for expert witnesses, regardless of the outcome of the case. In fact, some lawyers require clients to retain expert witnesses directly. This precautionary measure prevents the situation where a client is unwilling or unable to pay his or her lawyer for the use of the expert witness.