- Andrea Dobrin
Probably the most important pitfall and the number one complaint from expert witnesses is not getting paid. Go figure! You’ve put in the work, you’ve spent hours perfecting your report, the attorney you are working with loves your work and has approved your invoice….and then crickets.
Well, while not getting paid can happen on both sides of the aisle (plaintiff’s and defendant’s) it is less likely to happen if:
You have a signed and dated Fee Schedule that lays out your billing and payment requirements;
There is an insurance company involved with the side you are representing;
You have required a minimum “down payment” fee up front; and/or
The side you are representing wins their case (well, duh….!).
Even with all of the bases covered one expert witness reported that finding himself on the losing side, the payer (he didn’t state who) refused to pay the invoice for his services, instead he was offered a much lower amount to settle the bill a year after the case ended. Ultimately the expert chose to settle for half of his bill, figuring half was better than none.
In my own example, I completed my research and a report which exonerated the client from wrong doing to the degree that the Plaintiff’s attorney ended up dropping the client from the law suit. I was thrilled – this is exactly the outcome that usually has both attorneys and insurance companies jumping for joy. And yet, the months ticked by in silence. I sent three copies of my invoice, the first following my normal terms for payment, the second when the law firm stepped in to resubmit the invoice and the third after five months had passed without payment. Finally, six months following the end of the case I was paid.
My research has shown that the majority of experts reporting not getting paid or having to accept a lower fee were not working with an insurance company. That said, my own example of an insurance company (you know who you are- GGRRRRRRRRRR) completely ignoring my terms and not paying for six months despite a PERFECT outcome is clearly a cautionary tale. Here’s what I did wrong:
I did not have a signature line and date on my fee schedule that required the insurance company to sign off after approving my selection; and
I did not require a down payment up front.
Even after my experience I am still stubbornly (stupidly??) resistant to requiring a down payment up front. Why? Because I am still a Newbie Expert Witness. I believe that because I am in the process of building a reputation I need to be cautious about adding elements to my fee schedule that could be a solid turnoff for the decision makers. For now I decided to add the signature and date line to my fee schedule. Going forward I will probably also ask the attorney who selects me if there are any terms under the insurance company that I need to be aware of....for example maybe they only pay six months following the outcome of a case. I have no idea if this will be successful or not, so stay tuned!
As I said, I have not done Plaintiff’s work, but for the handful of people who might be reading this (Hah!) you may remember that in an earlier Blog I said that it might end up being the Plaintiff who needs to pay for the expert witness if they lose their case….it all depends on their agreement with the attorney. It isn’t a stretch to believe that when people are disappointed they aren’t really excited about paying the associated bills so anyone doing this type of witness work should be prepared to always require a down payment.
Some of you may be wondering about the possibility of taking your client (whoever the payer is) to court to get paid……..let’s talk about that next week in round two of Pitfalls!