ExposureBlog

It happens to all of us who have attorneys as clients.  Sooner or later someone is going to ask for a comprehensive report, read it, send it over to opposing counsel, then refuse to pay for it.  Some consultants send an invoice for the work immediately before the report goes out and others will refuse to sign it until they get paid.  One of my old friends, a world-renowned toxicologist, would demand payment before the report was sent.  It still didn’t help.  Not long before he passed away he told me about a very aggressive Missouri plaintiff lawyer popping him for several thousand dollars in a case involving diacetyl exposure.  When my friend asked the guy to pay up, the lawyer threatened him with a lawsuit. 

Not long after I began work as an Industrial Hygienist I was contacted by a Houston attorney who specialized in two things: (1) workers’ comp cases and (2) stiffing experts who worked for him.  I was told this by his assistant, who informed me early on that I would never, ever be paid.  How did he know?  Because HE had never been paid.   And yes, the assistant was correct. 

Several years later I was contacted by a Galveston lawyer who had a tox tort against one of the oil companies.  His routine: constantly explaining how much money this case would bring in, while being too busy to pay the bill.  Over many months of research he ran up a bill that totalled something like $25,000.   After my accountant–a grizzled ex-Chem Engineer–explained what was really going on, I refused to do any more work.  In response my client erupted with all sorts of threats.   Finally, he agreed to meet at a restaurant and pay “some” of his bill if I would turn over my documents.  I showed up with the material, and he showed up drunk, then explained how he could hire U of H students to do this sort of work “for about 4 dollars an hour.”  He never got his documents but he didn’t pay his bill either.  Later I heard he ran for judge and lost.

One of my friends, a clinical tox guy, said he was once cajoled into sending a fifty-page report to a lawyer before asking for payment.  The lawyer accepted the report, copied it and mailed it back to my friend, complaining the work “wasn’t good enough.”  No, he didn’t get paid either.

As a result of this behavior, many of my consultant friends are getting out of litigation support, preferring to work with businesses.  The work may be boring and repetitive, but the pay is regular.  One of my friends, a safety expert wonders why I’m still willing to appear in court–where opposing counsel will undoubtedly “wave every line you’ve ever written in front of the jury, trying to show you really don’t know much of anything.” 

He’s right, of course, but that’s one of the reasons litigation support is so interesting:  a trained litigator with a cadre of experts is available to review your work.  Can’t find that working for a business. 

Not long after our conversation, my agency sent me a case involving the floor of a restaurant.  Seems one of the features of that establishment was serving their customers peanuts and then allowing them to throw the debris on the floor.  A woman had slipped as a result of these peanut shells and had broken her leg.  After looking at the restaurant in question, I began researching peanuts.  I discovered that the shells on the floor can hide whole peanuts and that peanuts contain oil. . .quite a bit of oil, as a matter of fact.  

 I then visited one of the restaurants and sure enough, the waitress brought a bucket of peanuts to the table.  After ordering a steak (which was excellent) I confiscated a few of the peanuts and took them back for analysis: weight, size and oil content.   Then I started on my report.  The bottom line: I discovered that the shell debris can obscure whole peanuts, which when crushed underfoot can spread the mash over a surprisingly large surface.  Thus, while the peanut shells are “open and obvious” (the defense argument) the peanuts underneath are not.  And thus, the customer doesn’t have an idea of the true nature of the hazard.

After the analysis I spent about three days working up a report for the plaintiff lawyer.  By the time I sent it off it covered 15 single-spaced pages with 82 references.  Shortly after that, I sent my invoice for the work to my agency who then billed the lawyer. 

A month went by.  Then, I got a phone call from my agent.  Seems the lawyer didn’t understand why the bill was so high.  Seems he told my agent that I had agreed to do the investigation, analysis, report writeup–and apparently even the deposition–for the cost of the initial retainer (which typically covers about 18 hours of work.)  Bottom line: he wanted the analysis and report for free.

In all, it was about $5000 worth of work and this guy was simply not going to pay for it.  Worse, he had the information and there was nothing I could do about it.  While it was true that he couldn’t call me to the stand in trial, it was also true that opposing counsel had not hired an expert.  It would be dueling lawyers only. 

After wrestling with the situation for two months, I finally asked to be delisted from the case.  Two months later, he took it to a jury and won–the verdict came in (as I understand it) for over $200,000, a first for this type of case.

Experts in this situation have little recourse but to choose their clients–and especially their agencies wisely, making sure, that when confronted with clients like this one, that they’ll respond accordingly.  Additionally, my accountant has added a few caveats to the payment structure that will serve to prevent this from happening again.

I’m still doing litigation support, because I’ve found that the great majority of attorneys will treat their experts fairly.  It’s the ones that don’t who make life very interesting indeed.  Too interesting.