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. 

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