Most experts charge a retainer, part or all of which is also a, minimum fee. They vary from a low of $500 to several thousand.
The purposes of giving or receiving a retainer are several fold.
First, unfortunately, a few attorneys will tell an expert he is retained without using him or paying him a significant fee. The purpose is to "knock him out" – prevent the other side from using him. As previous articles on the subject have stated, unless paid, the expert is not "retained." Under current case law, he is still free to provide the opposition his services.
Paying a retainer to an expert that you intend to use locks him in for your side. Conversely, if you merely want to prevent the opposition from using him, he is at least entitled to a retainer.
Second, some attorneys will use the expert’s name, listing him in discovery as one of their experts without his consent, and then settle the case. The expert may or may not be aware that his name has been used. Several recent occurrences of this have come to light. If the expert has not been retained or given his consent, listing him as an expert is unethical conduct by the attorney. In doing this, the attorney has actually "used" the expert since the other side would have assumed he was supporting the side which listed him. Where he is well known in the industry his support to one side of a case may be a significant factor in the settlement. The "use" of his name therefore has value and he should be paid his retainer.
Lastly, many attorneys will talk with an expert on the phone and use his knowledge to help them formulate issues. The usual ending comment to such a phone conversation is, "I’ll get back to you." If the case then settles without further use of the expert, he is left with the impression that his knowledge and services have been used to the benefit of the attorney’s client, and yet he was not reimbursed for his advice. The expert is willing at no expense, to discuss his qualifications. But once an attorney starts asking him for his professional opinion, the clock should be running.
These are all reasons why experts require retainer fees.
At the very least, where an attorney has a half hour conversation on the merits of a case with an expert, the attorney should offer to pay for that time even if he doesn’t retain the expert. While the expert may not accept the offer of reimbursement, at least he will not feel cheated. If he is listed as your expert, pay the entire retainer whether he is used further or not.
Treat the expert as you, the attorney, would want to be treated. Their services are important to you and to your clients.
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