EXPERT WITNESSES AND THEIR FEES–THE ATTORNEY MUST PAY IF LITIGATION IS IN PROGRESS OR ANTICIPATED TO HAVE ANY HOPE OF PREVAILING IN COURT

I have been an expert witness for over 40 years and have appeared in court over 500 times. Except for when I was a witness for the prosecution in the years I was a Document Examiner for the government, I have been involved in countless civil cases  working for both plaintiff and defense and criminal cases also on both sides–in different cases, of course. Now, except for my salary as a former government expert, attorneys pay my fees to render an opinion and in a very small percentage of cases, testify to those opinions. If an expert  testifies too often, it raises questions about their objectivity.I testify in about 3% of cases in which I render an opinion. Every once in a while a private person, NOT IN LITIGATION, would call for an opinion, such as anonymous letter cases, for example, where someone received a harassing communication of some sort NOT associated with their employment. Employment cases may involve arbitration if there is a union involved. These cases are usually handled by in house counsel for the company. What I will be discussing here are private cases where the litigant hires their own attorney

In ANY private case where litigation is even a remote possibility, and the client is represented by counsel, I as an expert, CAN NOT UNDER ANY CIRCUMSTANCES have any communication about the case with the client for a myriad of reasons. The client can not communicate ANY fact directly to the expert that might have an impact on the case outside of the knowledge of their attorney, for obvious reasons. The attorney is the manager of the case and must know EVERYTHING about the case if they are to represent the client properly and fee negotiations are an important part of that since opposing counsel will seek to establish a connection between the amount of the fee and the opinion given by an expert.  The more money paid directly by the client the greater the expectation of a favorable opinion, whereas the honest attorney realizes for an expert to properly do their job may involve a lot of time.  An honest and accurate opinion by an expert will enable the attorney to properly advise their client before they spend an amount in legal fees that will oftentimes dwarf the amount of the expert fees.

So now we get to the issue of fees and WHO pays the expert in these private cases. The  payment of a fee is a rather crucial fact in the case, as stated,  which can have a major impact and the attorney must be sure that the client made no payment directly to the expert without their knowledge as it could be easily construed as an attempt to influence the expert in some way. Such a payment would destroy the credibility and objectivity of the expert even if made WITH  the attorneys knowledge because one can never know what is in the mind of the client at the time of making the payment and no matter how much the expert may protest he was not influenced they may not be able to stop a jury or trier of fact from believing otherwise.

In my many years of experience, I have found that an attorney who ALLOWS a client to pay an expert suggests to me that the attorney doesn’t have a lot of confidence in the truth of what his client is saying and doesn’t want to be left holding the bag for expert fees if the case is lost.

But in today’s economy, I have also found that a lot of attorneys simply don’t want to tie up funds for an expert, which can be substantial sometimes if the case is very complex,  when the prospect of recovering those funds in victory may be two or more years away if at all. It is money they can never get a return on until the matter is resolved. This is one reason why some attorneys, mostly sole practitioners with poor cash flow,  look for obvious cases that can be settled quickly–IE the proverbial young up and coming brain surgeon who gets rear-ended by an oil truck and is paralyzed for life, to give a rather obvious example. After all, what attorney wouldn’t want a case like that.  But we all know that what may not seem so obvious at first blush can turn into a multi-million dollar settlement. That is the reason attorneys go through discover to discover that hidden or deceptive fact that is the “smoking gun”. We all remember the movie where the patient is brain dead after surgery from vomiting into her mask, only to find out after the fact that the surgeon noticed on the intake sheet after the surgery that the person had a full meal one hour prior to surgery and the surgeon changed  it by adding a 1, making it eleven hours since the last meal instead of 1. A Document Examiner can easily make that distinction with an infra-red exam of the numbers and finding a difference in the ink.

There are simply NO excuses for not doing a thorough job, but some few attorneys are looking for that quick, easy buck like its the Irish Sweepstakes putting out minimal effort and reaping a HUGE reward. Things like this are what tarnish the legal profession in the eyes of many. You see  some these attorneys on TV a lot like aggressive salesman selling used cars. Like an expert, an attorney should get work because of an impeccable reputation for quality work, not because they are screaming at someone in a TV ad.

The opportunity must never be created in litigation where the client is to have ANY potential contact or influence over the expert and as stated, the payment of the fee by the client is one such example. Clients simply don’t understand the complexity of legal cases and lawyers and judges can’t possibly know everything. This is  why experts are necessary to win cases and this trend is increasing exponentially as litigation becomes more and more and more complex. And attorneys can not just get ANY expert but one who is honest, experienced and knows their stuff. Finding them takes a thorough search on the net and asking other top colleagues. Remember an honest expert proves their case by showing the OPPOSITE  conclusion can’t be true. Therefore, to overcome the report and/or testimony of an honest, competent and experienced expert is no easy task and everyone involved in the case, knows that. It requires an opinion from an equally competent expert to show where the first expert made a mistake and can clearly demonstrate that mistake. This seldom happens because obvious impeachment on the stand can destroy an expert.  After all, no one is perfect and we all make mistakes but a glaring error when the expert should know better is another story. The easiest way to succeed as an expert is to follow the prevailing authority and case law TO THE LETTER.  This is often hard to do and his is why haste makes waste in these matters. When an attorney has a report from such an expert and attached to that report are glowing letters of praise from satisfied clients and favorable comments from experienced judges who have seen it all, the mountain the opposition must overcome will be insurmountable. Many judges assume that if one side has an expert, the other side must have one also given the incorrect view held by many that almost all expertise is subjective.  If they don’t, get an  unimpeachable expert, they lose. But if YOUR expert has all those qualities and references I mentioned, THIS is what will settle the case and save your client the cost of litigation which, as stated FAR exceeds the cost of a top expert. This is a case where being “pennie wise and pound foolish” will be catastrophic..

But if the expert on the other side has numerous cases where they were found not credible or objective or even lied or withheld unfavorable information or simply don’t have the credentials and experience, their attorney/client has no prayer of winning. With the ease with which one can obtain info on the net these days, I find it amazing how such experts even get hired unless the wealthy client and  attorney just want a cheap expert to draw out the case and cost the other side more money than what they are paying because they really know the truth and just  hope to settle. Judges almost NEVER  award costs so the attorney reasons they have nothing to lose by dragging things out. You see this in defense cases where a big company has enough money to wear down the opposition. There is an element of this in litigation. Not everybody is really looking for the truth and if they are wealthy enough “justice” can be had. I wish I could say that all litigants are honest all the time as the oath requires but as the famous Supreme Court Justice Oliver-Wendall Holmes  once said, he would begin his court room sessions “Let the perjury begin”.

But as an attorney, the unfortunate fact of life is that YOU  hire and pay an honest, competent and experienced expert  to prevail in court regardless of the fees, NOT the client. Look at it this way, if you made a $10,000 investment and got a $100,000 return, would you not take that bet? Well in bigger cases where the potential rewards for your client are great, THAT is what it takes and if you are “nickle and diming” your expert so you have a greater pay day, or you are allowing your client to pay the bill because you don’t want to risk the money, how do you think the expert is going to feel and react? I know “I” don’t want the aggravation after all these years.. By alienating your expert you may not only be risking the case but an expert in the future when you may REALLY need one.  As one young and  very smart lawyer I met one time said: “I try not to piss off highly qualified experts. You never know when you might need them. You are a smart guy”I said.

Something to think about….

ROBERT J. PHILLIPS

DOCUMENT EXAMINER

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