Practice Development for Medical Expert Witnesses
Beryl Vaughan, Consultant
Nationwide

Email go@forensicexpertpro.com or Call (415) 302-9589

Get paid for your Forensic Expert Witness work.

There’s a right way and a wrong way

Retained only by the attorney and/or attorney’s law firm, with very few exceptions described below. Do not accept retention from a litigant directly.
This is legal, ethical, and common sense. 
Your best protection is
A. Retention Contract
B. Accountability, and
C. Holding attorneys accountable too! 

Guidelines for best practices, that will improve collections:

Terms are hourly. You are paid for your time spent. Period. Saves you from arguing later to get paid.
No contingency. Contingency fees are paid only if they win.
No liens. You are paid later, after they get around to it. You have no recourse.
No flat fee. You are paid the same whether you spend one hour or 30 on the case, even if scope explodes.
Discounts Applied Carefully–tread lightly for the reasons below. You are giving one person a “deal” and not someone else. Appearance of bias.

I’ll explain below how each of these payment structures operate, and terms to accept or reject.

Who Can Retain You?

Attorney engaging your services AND attorney’s law firm. You want both to be responsible for your fees in the event the attorney leaves the firm but the firm keeps the case.

Court. Courts may retain the Expert to preserve objectivity.  We see this most often in family law.

Attorney retains you and a “mark-up” referral resource manages the money. The referral service does not retain you.  See the 2022 Guide to Expert Witness Fees and Directories to learn how this works.

Internal Contracts with Government Entities

Federal Attorneys General: U.S. District and Appeals Courts.  You are a government contractor. Obligations and limitations apply. Internal billing people will walk you through the process to get their contract approved. Read it before signing because it’s common sense. 

Military. The U.S. government issues and approves your fees when you serve as an Expert Witness in a military court. You can expect some paperwork up front to establish you as a government contractor and a little bureaucracy but it isn’t that bad. You will have a contract with fee caps and perhaps an approval by a high ranking officer. Caps often have flexibility if scope of your work changes at a later time. In some cases, your Fee Schedule can be folded into the government contract. Likely your private Retention Contract will not be accepted.

Insurance Company ONLY if your work is administrative. Utilization reviews, assessment of a claimant to evaluate (not establish) claim validity.  Distinction:  if an Insurer’s Of-Counsel attorney approaches you to serve as an Expert in their insurance defense case, see “Attorneys Engaging Your Services” above. If an insurer’s In-House counsel approaches you, remember they are employees of the insurance company.

Who Can’t Retain You?

An insurance company on behalf of their insured. Why? Because they pay Plaintiff if defense loses. They have a vested interest.

Party to the action:

  • Plaintiff
  • Defendant
  • Applicant
  • Respondent or Petitioner (family law)
  • Criminal defendant

Anyone “putting up the fees” usually a party’s family member   

Third Party Guarantor

Contingency or Lien contracts.  You are paid out of the winning award. If they lose, you will have to go after the attorney. Either way YOUR TESTIMONY MAY APPEAR TO BE BIASED TOWARDS THE RETAINING ATTORNEY–I.E. YOU SUPPLY THE “RIGHT” OPINION OR YOU WON’T GET PAID. The hired gun model lurks here and is to be avoided.

Risks and Consequences

It’s unethical for a lawyer to induce you to accept a case on contingency. For the lawyer to do so is arguably malpractice on their part. And there are inevitable repercussions for the Expert if they (you) agree.

“A lawyer…may not directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case.”

California Bar’s Attorney Rules of Professional Conduct 3.4(d) California is not the only State with this ethical prohibition.

Professional Price: Harder to Get Paid if You’ve Been Disqualified. You could be Disqualified and opinion DISMISSED by the Court. Imagine the Court’s response on discovery you are retained by someone who, even at arm’s length, is gambling on a “win.” Courts can disqualify you–meaning you are not allowed to take the stand. Courts want to know: who pays you and do you get paid if they lose? That is the definition of a hired gun, the worst possible moniker for an Expert Witness.

The appellate courts see challenges to a judgment on the grounds an Expert’s testimony was in some way “defective” (a legal term.) Bias is a defect.

Disqualified Experts are Tracked.  

Attorneys can purchase a report of your disqualifications.  The bigger the case, the more likely they are to pass over an Expert with a history of Disqualification (even once!), in favor of an Expert who is squeaky clean.

The Check is NOT in the Mail

A private party pays your bill.

If a private party pays your fees, you are at the mercy of someone else’s cash flow.

I could recount dozens of cases where a private party “lost,” and refused to pay the Expert.  The private party, by the way, is usually the Plaintiff(s) or Defendant(s), however anyone privately paying the legal fees is included here. A family member, for example, may be paying the bills. An insurance company may be paying for the defense costs. As an expert witness, these distinctions are irrelevant and inapplicable to you.

An attorney-client relationship might not exist.

Further, the relationship between expert witness and the attorney who retains them is codified by law. Certain confidentiality rules, work-product and discoverability consequences exist that might not be present if you are retained by a private party.

That’s why you should always be retained by an attorney and their law firm.

Beware: The attorney retains you yet asks their client to pay you directly–maybe without your consent. If you don’t get paid, you never want to hear an attorney tell you to call their own client.

Retainer is in the bank.

Retainers are one way to be protected against non-payment of fees.

Require a large retainer if anyone’s financial well-being impacts your ability to collect your fees.

Explanation of Contingency, Liens, Discounts and Flat Fees
“Contingency”

This is a shortcut term that means payment is contingent on whether or not a party prevails. It is an acceptable arrangement for attorneys. Personal Injury lawyers are  generally paid 35-40% of an award if their client receives one, and they are paid nothing if their client “loses.” 

Contingency Bias: Who Cares Who Wins? Not You.

An Expert Witness has an ethical obligation to render opinions without commitment to someone’s “win.”

Per the American Academy of Psychiatry and the Law “Ethics Guidelines for the Practice of Forensic Psychiatry” (2005),

“Contingency fees undermine honesty and efforts to attain objectivity and should not be accepted.”

This applies to any Expert Witness in any field.

What is a Lien? Why You Can’t Accept It

Unlike contingency, a lien is where your fees are secured by plaintiff’s property–just like a mortgage. Again, there is a relationship between the Expert’s fee and the case outcome. Liens are tied to a specific case and paid against the lawyer’s assets regarding that case. They lose and there will be no money to pay you. They win? You are paid…unless the attorney is shady. It can be expensive to enforce payment under a lien. It’s not worth the hassle. It can also get you into legal trouble:

“In Straughter v. Raymond IV (C.D. Cal. 2011) 2011 WL 1789987…plaintiff gave the expert a lien against his personal property and against any recovery in the case because of his inability to afford her hourly rate. That constituted “a de facto contingency fee arrangement.”

Ventura, Luis. San Diego County Bar Association “Ethics Corner

Flat Fees: Legal But Dangerous

Doctors sometimes tell me they charge a flat fee. I believe it does not rise to the level of best practices, ethically and practically, though there is no law against charging a flat fee for your work. Here’s the danger:

Contractors, Lowest Bidder and You.  Flat fees are most common in professions where profit is made by spending less than the fee collected. A contractor makes more money if paid a flat fee which is more than her or his costs to subcontractors, for example.

For an Expert Witness, the question suggests the flat fee changes the Expert’s opinions. Did the expert put full effort into coming to their conclusions, or did they cut corners to make a profit?

Rise above that bar.

Discounts vs. Fee Reductions

Extensive experience guides my advice.

Fee Reductions meet Best-Practices. My definition of best practices is tied to the ethical defensibility to the arrangement.

Discounts applied after work is completed raise questions you should never have to answer: why did you cut your charges? Was this a side agreement with the attorney? Why? Keep reading.

Fee Reductions are Acceptable.

Charitable.  Forensic doctors reduce their fees all the time, for example for court-appointed work, pro bono, or work with public defenders.

To Gain Experience. Reducing your fees in cases where you want to gain trial experience is understandable.

“Discounts” Means a Percentage or Flat Write off is Negotiated Before Work Begins. It Rarely Meets Best-Practices.

I define “discount” as a percentage which reduces your fee at the time you bill, or overall reduction in dollar amount. In other words, something like a reduction in overall fee of 10%, or $1,000 off your first report. These numbers are attached to work overall, including your final opinion.

That can create a misunderstanding about the objective nature of your conclusions.

When is it ok to reduce your hourly rate? A reduction to your usual hourly fee, in my opinion, is the only acceptable method to produce a lessened overall cost to the person retaining you, if that is your intention. It begins the moment you bill your first minute and is in no way tied to the final invoice or final “forensic conclusion” whether it be a report or testimony.

Personal Gain. There’s nothing wrong with wanting to advance your career, but you will need to make it clear to an attorney retaining you–in your first conversations before signing a contract–that acceptance of a fee lower than your usual rate does not impact your opinion, be it favorable or unfavorable. It is also possible a discount could be viewed as a form of referral incentive form you to the attorney.

Referral fees are common in many professions. They are not in expert witness work. A discount to the attorney, or write off of a flat amount should not suggest that you are requesting or requiring a promise from the retaining party of future work. If you are paying a referral fee, bill that as a separate item and keep it at arm’s length from the expert witness retention.

Cross-Examination.  While a discount for personal gain (the promise of future work) may be legal, always prepare for the worst case scenario: during cross-examination do you want to have to defend the discount? If you’re confident you can do so in a logical and ethical manner, prepare how you want to field the questions. If your motives were greed, or can be characterized as greed, the damage done may be irreversible.    

Conclusion

How you’re paid is relevant. If you make an indefensible choice, it could stop your career in its tracks. To summarize:

  • Hourly fee paid…by the hour is the expert witness standard practice and best supports the claim of objectivity.
  • Contingency is completely indefensible.
  • A reduction in fees for charitable reasons is common practice and beneficial to your reputation.

Get Legal Advice. I recommend you review the terms of your engagement contract with close scrutiny on this topic. Get a second set of eyes and, most importantly, have it reviewed (or drafted) by an attorney knowledgeable in the law and ethical obligations applicable to the Expert Witness.

Disclosure, Disclaimer

Beryl Vaughan is not a lawyer or doctor; instead she builds sound, ethical and common sense bridges between the practical worlds of medicine and law relying on 30 years of experience to  help a forensic business grow.