by Captain Kirk Greiner, USCG (Ret)
President, Maritime & Environmental Consultants
An article in the July issue of the ABA journal regarding cost control of lawyers (LawScope: News page 17) can be easily extended to experts used by attorneys. The ever rising costs associated with litigation has resulted in much tighter controls by the insurers who are the largest employers of attorneys.
This is a subject which we have addressed in a previous issue, but one which continues to demand our attention. We hear of complaints by attorneys about the bills submitted by the consultants and experts they hire. This is a matter under their control and if they do not control their experts, they have no-one but themselves to blame.
First, what is a reasonable fee to pay an expert? Annually, MEC publishes in THE EXPERT the high, low and average hourly fee of consultants in two different fields—naval architecture and engineering. This information is compiled by the National Forensic Center and published in their newsletter annually. From our experience handling 60 consultants, we believe the figures are valid.
Some attorneys try to get the expert to reduce his fee under $50 per hour (which is about the low fee on the scale anyway). If the attorney is successful, he feels he got a bargain I don’t think so. Those who will acquiesce to such a low figure are usually not the profession expert—the one who has experience in handling himself in court. They are likely to be not as good and the attorney is taking a chance with him.
Our experience is that the "presence" of an expert in court is essential to the welfare of the case. Certainly the expert must be professionally qualified, but he must also know how to handle himself on the stand. The average fee is between $70 and $80 an hour and should be expected. The hourly fee is not the area in which to "save money".
Control of the expert’s time—that is the area in which the attorney and the expert must agree. Decide what the expert is to do. Don’t tell him what to do without hearing his or her view of what needs to be done. After all, you are hiring the expert for their knowledge in a particular field so don’t presume to limit them without hearing their view on what they can do for you and what their idea is of additional issues which you may have overlooked. An experienced expert—one who has been involved with litigation—can make valuable suggestions on additional areas that you should examine in your case.
However, once you have decided what the expert is to do before trial, ask him or her for an estimate in writing of the cost to do the work which YOU have decided YOU want them to do. If there are any questions, discuss them with the expert. Here is your cost control.
Tell the expert that he cannot exceed a specific amount without your permission. If you want, have him give you verbal periodic cost reports. In fact, I recommend you get monthly detailed billings from your expert. They will tell you how much he has spent, and what he has done.
I specified agreeing on expenses up to trial. Trial expenses are directly controlled by the attorney without the need for prior agreement. You tell the expert when to arrive, and dismiss him when you no longer need him. The expenses when the expert is not working under your direct control are those on which you want to agree in advance.
At the very beginning, agree to when payments will be made. There is nothing more disheartening to an expert than to have to wait for months for a payment. If you pass the bill on to a client for payment, advise the expert and tell him what your experience is on payment from that client. If you don’t intend to pay until the case is finished (sometimes years), you better be up front with the expert on it since he may back out in the middle if he is expecting payment and none is forthcoming.
Also, reach an understanding on interest, if any, that the expert will apply to delayed payments. Consulting and expert testimony is a business. More and more consultants are charging interest on delayed payments, so reach an agreement ahead of time on what they will be.
One last comment, Some experts, and I am one of them, add a surcharge to expenses. It usually runs from 10% to 15%. Some experts offer a way to avoid these surcharges. If the attorney purchases the tickets and pays for the hotel and meals, no surcharge is made. This can easily be done when the expert is visiting your office if your company has an arrangement with a local hotel.
Consultant and expert fees can and should be controlled. Don’t be caught with an unexpectedly high bill and be placed in the position of explaining it to your client.
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