Page 18 - Expert Witness

vices. Once hired, the practitioner should expect to provide services continuously or sporadically, or
both, over a period of time.

Fees

As with any professional engagement, the fees and billing practices used by the practitioner will depend
upon the perceived economic risks and rewards of the engagement, scope of the work to be performed,
personnel needs, and resource requirements, as well as other factors. Additionally, rules and require-
ments related to fee arrangements, timekeeping, and invoicing vary depending on the subject matter, ju-
risdiction, judge, law, and prospective client attorney preferences. The practitioner needs to assess the
credit risks of performing the litigation services.

The engagement letter typically sets forth who will be responsible for the payment of fees and expenses.
The engagement letter often is addressed to the attorney and usually requests acknowledgement of the
terms of the engagement by having both the attorney and client sign and return a copy. Often an en-
gagement letter requests a retainer be paid upon the hiring of the practitioner.

The level of detail to be provided (for example, description of time, expenses, detail, and so on) with the
invoice also varies between engagements and should be discussed with the attorney at the beginning of
the engagement. In certain engagements, the court may require more detail in the billing. The practition-
er should realize that if detailed billing records exist, they might be discoverable.

A contingent fee is a fee established for the performance of any service pursuant to an arrangement in
which no fee will be charged unless a specified finding or result is attained or in which the amount of the
fee is otherwise dependent upon the finding or result of such service. However, the "Contingent Fees
Rule" (ET sec. 1.510.001) notes this exception: fees are not regarded as being contingent if fixed by
courts or other public authorities or, in tax matters, if determined based on the results of judicial pro-
ceedings or the findings of government agencies. A practitioner engaged as an expert witness in a litiga-
tion engagement may not provide opinions pursuant to a contingent fee arrangement, unless explicitly
allowed otherwise under the “Contingent Fees Rule.” fn 7

Fixed fees arrangements are permissible but may not be advisable. Typically, as the litigation process
develops, additional work is required. The amount of work that needs to be performed usually increases
as the case progresses. Thus, the practitioner who is working under a fixed fee arrangement should be
specific about his or her scope and may want to consider protecting himself or herself in the engagement
letter by requiring the client to sign written change orders before beginning work that is outside of the
scope of the original engagement letter.

The majority of practitioner fee arrangements for litigation services are hourly rates for professionals,
plus any associated expense incurred. Nonetheless, arrangements may include fixed fee tasks, blended
average hourly rate agreements, discounts or premiums, and administrative charges. Invoicing may pro-
vide for early payment discounts, late payment charges, and other allowable and acceptable terms. In
addition, the practitioner may elect to collect a retainer in advance, which is a common practice for liti-
gation support engagements. The retainer can either be applied to the final billing for services rendered
or to the initial services rendered. Others require a higher hourly rate for expert testimony in deposition

fn 7 SSFS No. 1, paragraph 9.

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