Experts and Expenses

The subject of today’s blog is experts and expenses. Experts are a necessary part of any major, or even not quite so major, personal injury case. You need experts: you need them for damages and, many times, you need them for liability. In those cases where you need experts to help to establish liability, the case will not “get to a jury” without them. In other words, the judge will not let a jury render a decision in the absence of certain expert testimony.

While you can’t avoid them, I do want to point out that in Massachusetts we are told by our appellate courts that “experts do not decide cases, juries do.” Still, even though there is that limiting notion, keep in mind that experts will be a part of the fabric of your case.

What about their expense? Who pays for them and, perhaps of equal significance, when will they be paid? Their costs are no small matter. Consequently, let me digress to let you know that I will never forget the surprise on a judge’s face when I was at what is called a Bench-Bar meeting (a meeting of judges and lawyers) and I mentioned the costs that are carried into a trial, particularly those of expert fees. When I explained to the judge the very high cost of expert witnesses, he seemed shocked. This judge is a very good Superior Court judge, I might add.

As the expert is reviewing a case -whether going to an accident scene, rendering an opinion, giving a report, or preparing for testimony- the lawyer will be given an invoice. In my law firm, and this is of course appropriate and ethical, we will pay the expert those fees as they become due. You should find an attorney to represent you in a personal injury case who will not ask you to pay those expert fees while they are being incurred. Rather, at the time of the successful conclusion of the case, the lawyer can get reimbursed for that expert’s time and expenses. I personally view it as a business expense and I would never ask my clients to pay the expert fees as they become due. I would wait rather for the satisfactory resolution of the case.

Why should a client who is not familiar with these kinds of expenses have sleepless nights wondering if they can pay these fees? Most often, clients cannot afford what can turn out to be a very high cost. Furthermore, if the case, for some reason, is not successfully resolved, then it is the practice of my firm not to ask the client for reimbursement. (Fortunately, I am delighted to report, unsuccessful resolutions are few and far between!) There is no ethical requirement to have the client pay in that circumstance. I won’t ask the client nor have I ever. An option is now included in the standard Contingent Fee Agreement, explicitly approved by the highest court of Massachusetts, to allow for the non-recovery of fees and expenses.

The key thing to remember is that the strong likelihood is your case will have a successful resolution. Toward that end, you do not want a law firm representing you who will, while the case is going on, ask you for expert reimbursement or any kind of reimbursement. That is just not the way it is done in my practice. We have found it to be a client-friendly approach, one appreciated by clients.

This blog has focused on experts and the costs associated with hiring and using them. Those are not by any means the only costs but they are probably the most significant costs. You should ask at the outset of your meeting with your lawyer how the issue of costs will be treated.