Engagement by Whom

[ExpertInCalifornia]

My question involves expert witness practice in the state of: California primarily, although I regularly perform services for those in states other than California.

I have historically been engaged directly by the law firm, rather than directly by the client. Recently, it is as if the legal profession received a message from above indicating that they should avoid direct hiring of experts and instead ask the expert to accept being engaged directly by the client.

I am uncomfortable doing so, although my discomfort merely stems from the fact that it is inconsistent with my past practice.

Is anybody aware of strong arguments one way or the other?

[Security Consultant]

Interesting subject. My only thought is the attorney does not want to be responsible for payment to the consultant. Many of these cases, at least the ones I'm contacted about, are taken on a contingency basis. Maybe the attorney(s) is not confident about their case. I've yet to experience what you are regarding litigation support cases.

[ExpertInCalifornia]

Thanks for the reply. Almost all of my cases are not contingency. I wonder if the age-old issue of workproduct privilege bears on this.

[ExpertInCalifornia]

Does anybody have anything to add to this discussion? Thanks

[Mr. Knowitall]

You might be able to safely structure such a deal - by contracting for specific services, getting paid in advance, and requiring additional deposits or retainers as the prior retainers are exhausted. You don't have the same ethical obligations as a lawyer to potentially have to stay in a case if your fee isn't paid - although depending upon your profession you have your own professional codes to worry about.

There are experts who won't even begin a defense deposition until they have a check in hand. It's not unreasonable to take steps to ensure that you are paid, particularly when it appears that the law firm is trying to avoid any responsibility to pay you if their client doesn't come through.

[ExpertInCalifornia]

Thanks for the reply. My engagement agreement already has an evergreen provision. Is the only real issue getting paid? If so, then I'm not too worried. While my professional standards would require that I not abandon the client except in unusual circumstances, the failure to fulfill a contractual provision would certainly give rise to the ability to walk away.

One issue I've thought about is after the fact liability. Does the fact that the engagement is between an expert and a lay person leave the expert with greater liability than an engagement between an expert and a law firm? I haven't vetted this through my E&O carrier, yet, but do they increase the underwriting risk for an engagement agreement that typically is between the expert and a lay person?