According to a recent expert witness fee survey, the use of retainers in the expert field varies greatly. While some attorneys have generally accepted retainers as a legitimate part of the expert engagement process, retainers can sometimes be a point of contention between expert witnesses and their clients, especially when the client is an attorney representing a plaintiff on a contingent fee basis, or when the attorney's client is a large corporation with a company policy prohibiting the payment of up-front retainers of any kind.

As with most things, there are both positive and negative factors when deciding whether to use a retainer. There are several telling reasons to support their use. In the same survey, some experts reported having trouble collecting on an invoice from a retaining attorney at least once. Further, requiring a retainer, especially if it is nonrefundable, prevents the expert from being named as an "expert" in a case where the principal aim of the retaining attorney is to prevent the opposing side from using the expert. Working with an expert witness referral firm often mitigates the above risks, as most of these firms have long-standing relationships with attorneys and law firms, and collection departments in case billing troubles surface.

Not requesting a retainer or keeping it fairly low can make you more attractive to potential clients, especially in areas where there is keen competition for assignments. In choosing between two experts with similar qualifications, especially in plaintiff cases, a potential client will obviously compare the size or existence of a retainer when making his or her decision.

Whether working with an expert witness referral firm or directly with a client, if you decide to require a retainer, it is of paramount importance to make your request known at the very beginning of the engagement process. Suddenly requesting a retainer after being engaged will only lead to conflict between you and the retaining attorney. Remember that often in order to hire you, the retaining attorney has to get permission from his or her client. Accordingly, asking the attorney to go back to his client and request an additional lump sum will not go over very well. Being upfront from the onset is one of the best ways to create a positive working relationship and subsequently get you hired for further assignments in the future. 

Expert witnesses are often confronted with the dilemma of whether or not to invoice for background legal research, or for research done to bring themselves up to date on the issue for which they are serving as an expert. What experts may not know is that many states' attorney ethics codes prohibit attorneys from billing for legal research to bring themselves up to speed on a legal issue. Accordingly, almost no attorneys are willing to pay an expert for his or her time doing research to get up to speed on an issue.

Remember, as an expert witness you are being retained because you are supposed to be an expert in the field. Any work or research done to get to the point of being an "expert" on the issue should be off the clock and not billable.

You need to find an expert witness to determine whether a competitor's new product infringes upon its patent. How can you find a top quality expert with the specific knowledge you need?

Dennis Crouch, associate professor of law, University of Missouri, recently conducted an analysis regarding patent litigation.  His findings indicate that our fictional product infringement is a very real problem for many practicing patent attorneys.  He observed that the number of patents being litigated has substantially increased over the last 20 years. "More complaints are being filed and more patents are being asserted with each complaint," he notes.

One way to help ensure that your patent cases reach a successful conclusion is to seek help from an expert witness referral firm such as Round Table Group (RTG).  Round Table Group fulfills requests for patent experts more often than any other type of expert, says RTG's Nick Zafran, who has been researching and compiling the company's extensive billing data.

RTG's research has shown that patent experts bill for more hours than any other category of expert witness. "A medical expert often reviews a single person's medical file," says Zafran, "but for patent experts, there can literally be hundreds or thousands of pages of documents to review."

Top-four fields and their rates

When seeking an IP expert witness, consider billing rates for the top-four fields:

1. Computer Science Expert Witnesses - They examine computer systems, Internet protocols, software source code and operating systems--and earn an average of $425 per hour, according to Round Table Group data. "They're the most in demand, and the stakes involved in these cases are a lot higher," says Zafran, "so they feel that their rates can be higher."

2. Biomechanical Engineer Expert Witnesses - These experts review cases dealing with medical devices like heart valves and stents, and earn an average of $386 per hour. "It's a very big area now, especially for us," says Zafran.

3. Electrical Engineer Expert Witnesses - They consult on cases that involve electrical devices, among them circuit boards, semiconductors and electronic power systems. These experts earn an average of $353 per hour, according to RTG data.

4. Mechanical Engineer Expert Witnesses - Cases typically involve mechanical devices such as pulley systems or automotive components, and engineers earn an average of $291 per hour.

Technical jargon translation

IP cases usually settle, says Zafran, but attorneys nonetheless seek experts who can translate technical jargon into layman's terms. Round Table Group can make this step of the process easy.

"We can set up a phone interview so an attorney can get a sense of how well someone speaks," says Zafran. "If you go to one of the standard free lists to find an expert, you're not going to get that."

Attorneys also seek experts who have some--but not too much--experience. "They prefer experts who have specific expertise without appearing to be a hired gun," he adds. "Finding someone who has experience with your product who doesn't go from case to case is hard to find on your own."

It is important to note that expert service firms commonly present a rate higher than what an expert demands. The amount varies, but is typically around $100. In exchange for this, expert service firms locate and vet hard-to-find experts in all specialties. These experts, at the top of their field, are often not listed on any free "expert" databases.

Expert witness billing rate predictions

This concludes The Expert Advisor's series on expert witness billing rates, but we'd like to leave you with a forecast for the future. The following trends should surface in the coming months or years, according to Round Table Group research:

Billing rates should start moderating.
Expect expert witnesses' rates to stabilize or even drop slightly, predicts Zafran. The main reason? "Competition for jobs," he says. "That's going to keep rates where they are or bring them down a bit, across all categories, except maybe very high-end surgeons with specific expertise."
 
Lending experts will be in demand.
More litigation surrounding mortgage lending should surface in the near future, says Zafran. "Experts who at one time worked in high-level lending positions are going to be fairly high in demand," he notes.
 
This article was written by RTG contributor Lisa Fields.
Patently O, patent law blog, Published March 17, 2008: http://www.patentlyo.com/patent/2008/03/patent-litigati.html

Worry seems to be rampant, especially (ironically) among the most "advanced" members of our society - the talented, the intellectuals, the ones who are often called upon to serve as expert witnesses. Perhaps it is due to our anxieties about the past, or worries about the future. Maybe it is due to unfulfilled desires, or unhealthy attachments to the things and relationships we have acquired. Whatever the source, it is clear that worry is not useful. According to the Zen tradition, worry is a cancer of the emotions - concern gone compulsive. It eats away at body and mind.

An expert witness, more so than others, has a powerful intellect that can regulate the anxieties of the past and worries for the future. An expert witness has a higher calling and does not have time or energy for such worries. Similarly, an expert witness, already esteemed by his colleagues as having achieved mastery of his field, is able to use his intellect to keep the ever-increasing desires of the mind in check. A true expert wtness does not become attached to things and relationship in an unhealthy way.

The expert witness has high energy levels because he has a high ideal: ensuring that the cause of justice prevails in an important legal matter. The world will ever and always be a constant parade of violence, conflict and injustice. It is enough to take care of yourself and do something good for those you meet.  That is why it is imperative for an expert witness to answer the call of justice.

If an opportunity presents itself, whether by chance, by your own expert marketing, or by an expert witness referral firm, answer the call. If you are qualified and believe in the cause of the party you represent, do your duty and become an expert witness, even if you are "busy." Help because it is in your power to help. After you have acted, after you have completed your service as an expert witness, withdraw and be unconcerned about it, unconcerned about the outcome. Walk on without ever mentioning it to anybody. Then there is no worry, because there has been action.

Russ W. Rosenzweig