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Criminal Justice Magazine

Winter 2025

Check Mates? What a Client’s Direct Payment Can Imply About Expert Witness Services

Eric York Drogin

Summary

  • Speed of retention should be weighed against the potentially problematic implications of direct client payments to experts.
  • A fiduciary relationship exists between counsel and the expert, and not between the client and the expert.
  • Contingent fees are consistently disfavored by expert witness codes of ethics.
Check Mates? What a Client’s Direct Payment Can Imply About Expert Witness Services
Jordan Lye via Getty Images

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This column’s first outing surfaced the notion of what is involved in “serving clients.” This begs the question of who the “clients” actually are, what it truly means to be “serving” them, and, of course—as in all matters pertaining to forensic mental health—how all of this looks to the lay, collegial, or institutional eye. Let’s examine how counsel might consult with a reputable mental health professional on the proper way to facilitate payment for evaluations in the private sector.

Counsel: Are you available to conduct a high-profile evaluation for a defendant whose family is willing to pay top dollar for expert witness services?

Doctor: That’s what it says on my website.

Counsel: You’re being deposed in another case for me next week, so tell me it really doesn’t.

Doctor: Well, maybe it should … except perhaps for that “high-profile” part.

Counsel: Isn’t publicity good for your kind of business?

Doctor: Maybe when an expert witness is just getting started, but once you’ve established a reputation for being right sometimes and telling the truth always, the work is rarely in short supply. High-profile cases often come with questionably accurate press coverage, nasty Internet speculation, and the side-eye from fellow patrons at the local coffee shop. These cases also can solidify the legal community’s view of you as being an expert for primarily one side as opposed to the other.

Counsel: Is it better, then, to fly under the radar?

Doctor: It’s okay to be noticed, but a good expert witness practice is like a good bass line: consistent, unobtrusive, and suited to the gig, with the occasional flourish here and there just to keep things moving and remind the audience where they’d be without it. Anyway, shall we take this tune from the top? You said something about “top dollar.”

Counsel: I meant it. Please consider locking in at the highest rate you normally charge in the private sector.

Doctor: To justify your own exorbitant fee?

Counsel: To remind the client’s family that you’re the real deal. Look at it this way: They have vast resources, and they’re taking a chance on a local defense lawyer instead of going to New York, Chicago, or D.C. for silk-stocking representation.

Doctor: How many times have we seen that blow up in a client’s face?

Counsel: Exactly. Sometimes home cooking is the best choice on the menu. Anyway, now they’ve settled on me, perhaps with some trepidation, and I need to demonstrate to them that I’m in a position to deliver when it comes to scientific expertise.

Doctor: So, if you can’t make me a better doctor, at least you can make me more expensive.

Counsel: Yes, because—no, of course not! You’re exceptionally well suited to this case, you have local cachet, and, although with my present budget I could go doctor shopping all over the country, you’re the one we need. Do you have a peevish response for that?

Doctor: At these rates, surely I can think of something.

Counsel: I want to get you retained as soon as possible once you can run a conflict check. My client has been sitting in stir for some time now.

Doctor: No bond, I suppose, given the whole “vast resources” thing.

Counsel: That’s right, so please send me a retention letter—ask for 30 hours to get started; you’ll use it in a case like this—and I’ll have the family cut you a check and ask them to overnight it to you.

Doctor: Do you remember our having a brief discussion about that a few years ago?

Counsel: Overnight is pretty reliable these days, even post-pandemic.

Doctor: Not that. You mentioned having a family send me a retainer check—not exactly one that was going to break the bank—and I said, “it’s better if it comes from you” because this was “your client, not mine.”

Counsel: That sounds vaguely familiar. I just went along with it, which is typically the path of least resistance. Just because I try to get the jury to think about everything you say doesn’t mean I have to go there myself.

Doctor: Do the optics of my collecting money directly from the family concern you?

Counsel: They’re starting to, when you put it that way. I want you on board as soon as possible though, and it would take some time to clear the family’s check through the firm’s escrow account. Is this one of those things where there’s a codified shrink rule that forces me to do things a certain way to keep you out of trouble?

Doctor: This one’s not about me. One guideline points out that “contingency fees undermine honesty and efforts to attain objectivity” and adds that “retainer fees, however, do not create the same problems,” without addressing how the money actually gets transferred. Another guideline says doctors “may exercise professional discretion in determining the extent and means by which services are provided and agreements are fulfilled,” and that they “seek to avoid undue influence that might result from financial compensation or other gains,” but doesn’t go much deeper than that.

Counsel: None of this seems to create a serious problem …

Doctor: … and at least you didn’t ask the family to identify and retain a doctor on their own and then tell you who the lucky winner was going to be.

Counsel: I’ve always considered that maneuver the height of laziness. You’d think the family would be concerned if the attorney didn’t even seem to know—or care—what expert winds up working on the case.

Doctor: There’s another angle on this, too. On a couple of occasions, I’ve had attorneys tell me that they did this in order to make it look more like the expert was the “client’s doctor” instead of some sort of “hired gun” solicited by the lawyer.

Counsel: Doesn’t everyone involved know better?

Doctor: I’m not so sure about the jury, and sometimes I wonder about the judge. What I do know is that on cross-examination I’ve occasionally had to field questions about how costs were determined, what negotiations might have been undertaken, what representations were made directly to the family about what the client—your client—would be getting, and so forth. The most awkward scenario, of course, is when the examinee shows up and hands over the check to me directly. It’s nice to be able to be on message about the fact that financial and all other matters are between you and me, and that you’re the one to whom I’ll be delivering the news, be it good or bad.

Counsel: Message received. As soon as I get your letter, I’ll ask the family to overnight a check to me so I can process it as soon as possible.

Our readers were also promised a “balanced approach,” so here goes: Prosecutors need not shy away from looking into what dynamics may have been influencing the juxtaposition of money and expert witness services, even if the funds were sent cautiously and deliberately through an extra set of hands.

Please feel encouraged to contact Dr. Drogin with any questions about expert witness funding, or with any suggestions for future topics.

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