Get paid for your Forensic Expert Witness work.
There’s a right way and a wrong way
One Rule: an Expert Witness must be retained by the attorney and/or attorney’s law firm, with very few exceptions described below.
This is legal, ethical, and common sense.
Your best protection is
A. a Retention Contract
B. Your accountable behavior, and
C. Making your clients accountable too!
Guidelines for best practices:
Terms are hourly
No flat fee
Discounts Applied Carefully–tread lightly for the reasons below
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:
- 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. 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.
Personal Loss: The Check is in the Mail
If a private party pays your fees, you are at the mercy of someone else’s cashflow. I could recount dozens of cases where someone “lost” and refused to pay the Expert.
Retainers protect you. Require a large retainer if anyone’s financial well-being impacts your ability to collect your fees. “Anyone” includes the law firm that retained you.
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.”
Who cares who wins? Not the Expert. An Expert Witness has an ethical obligation to render opinions without commitment to someone aiming to “win.”
“Contingency fees undermine honesty and efforts to attain objectivity and should not be accepted.”
This applies to any Expert Witness in any field.
Liens, unlike contingency, a lien is where your fees are secured by plaintiff’s property-just like a bank. Again, there is a direct relationship between the Expert’s fee and the case outcome.
“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.”
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.
Fee Reductions are Acceptable.
Charitable. Forensic doctors reduce their fees all the time, for example for court-appointed work, pro bono, public defenders.
To Gain Experience. Reducing your fees in cases where you want to gain trial experience is understandable.
“Discounts” – a Percentage or Flat Write off Negotiated before work begins, does not meet Best-Practices in Most Events. 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.
Why is it ok to reduce your hourly rate? A fee reduction–reduction in your hourly fee, in my opinion, is the only acceptable method to produce a lessened overall fee, 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, and you are not requesting or requiring a promise from the retaining part of future work.
Cross-Examination. While a discount for personal gain (the promise of future work) may be legal but during cross-examination do you want to have to defend the discount? If your motives were greed, or can be characterized as greed, the damage done may be irreversible.
How you’re paid and why are relevant. If you make an indefensible choice, it could stop your career in its tracks.
Never forget: contingency is completely indefensible, while 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.
Beryl Vaughan is not a lawyer or doctor; instead she builds sounds, common sense and strong bridges between the practical worlds of medicine and law relying on 30 years of experience with ethical business practices that help a forensic business grow.