SReeserinPA, post: 389992, member: 6126 wrote: Brad, I support your thought process above. T play the devil's advocate, what happens if you get subpoenaed? How do you recover your costs?
Best of luck!
The court system frowns on people being used as an expert without wanting to pay them. If a lawyer tried that, the first thing I'd say on the stand is, "I'm not here of my own will and I am a hostile witness." I wouldn't get too torn up over the subpoena. I was told in Tennessee it is a necessity, because without a subpoena, if for any reason I can't make it to court, the trial will not be rescheduled.
Yous guys all r o c k! I am refining my e-mail response now, because my verbal response would not be productive.
Here is a draft message my wife helped me to craft:
Client,
Yes, I did get your voicemail today. I have been out in the field surveying.
I think you misunderstood my proposal. The retainer in a possible court appearance is the minimum fee that I charge to block out my time for such cases. This is time I need to prepare for the case, not the actual time I will spend on the case. I will use this time to review records, numbers and calculations on the work that I have done previously on your project to get me back up to speed so we can move ahead in a timely manner with the rest of the work. Once I start meeting with attorneys, going out to the site to at least visually verify the site conditions have not changed, and possibly spending time in court, this time will be billed hourly.
I am sorry for any confusion this may have caused you. If you would like move ahead under these terms, please send me the signed contract and the retainer fee.
Thank you.
Daniel Ralph, post: 389985, member: 8817 wrote: And wish I had the stamina to venture to Puyallup tonight.
Ah, come on Dan; it'll be fun...
At least around here, testimony fee is usually 2 or 3 times the regular hourly rate.
So, "this guy" apparently responds better to texts rather than e-mails. Here are his responses to my above message:
This guy....
https://surveyorconnect.com/community/x-apple-data-detectors://0&apos ;">6:38pm
Hey Brad, I was driving when you sent your text. My understanding from Mister Lawyer is that you are needed to confirm that the plat with property line indications are ones that you did and what we are submitting as evidence to the court is authentic. I don't believe you need to do any prep work or any other work - just confirmation. Is it okay to pay you your hourly rate for the initial meeting with Mister Lawyer and after that see what is needed? Thanks.
If you would like a can bring a check to your office first thing https://surveyorconnect.com/community/x-apple-data-detectors://2&apos ;">tomorrow morning to cover 2 hours of your time for the initial meeting.
https://surveyorconnect.com/community/x-apple-data-detectors://3&apos ;">8:56pm
Hey Brad, I don't want to keep bugging you but just need to know if we are good for your meeting with Mister Lawyer https://surveyorconnect.com/community/x-apple-data-detectors://5&apos ;">tomorrow? I'll sleep better. ÷¼
~
Not sure how happy I will be to see this fella on my front porch first thing in the morning. I know that I am going to sleep just fine. He has had my proposal for a month.
when you see him next simply state "I only work in Full Day Increments" then shut your mouth. The first one to speak looses. (that Day is 8 hours or less)
10 minute phone call = he just paid for the Day
emails and texts go unanswered until he agrees, signs your contract, and you have been Paid for that first Day... response would be "I need a signed contract and retainer before I can respond" and not more than that.
This is Simple. Don't write a thesis again, it doesn't help.
He could turn out to be a good client once the ground rules are set, but this is going down hill fast.
Brad Ott, post: 390105, member: 197 wrote: So, "this guy" apparently responds better to texts rather than e-mails. Here are his responses to my above message:
This guy....
https://surveyorconnect.com/community/x-apple-data-detectors://0&apos ;">6:38pmHey Brad, I was driving when you sent your text. My understanding from Mister Lawyer is that you are needed to confirm that the plat with property line indications are ones that you did and what we are submitting as evidence to the court is authentic. I don't believe you need to do any prep work or any other work - just confirmation. Is it okay to pay you your hourly rate for the initial meeting with Mister Lawyer and after that see what is needed? Thanks.
If you would like a can bring a check to your office first thing https://surveyorconnect.com/community/x-apple-data-detectors://2&apos ;">tomorrow morning to cover 2 hours of your time for the initial meeting.
https://surveyorconnect.com/community/x-apple-data-detectors://3&apos ;">8:56pm
Hey Brad, I don't want to keep bugging you but just need to know if we are good for your meeting with Mister Lawyer https://surveyorconnect.com/community/x-apple-data-detectors://5&apos ;">tomorrow? I'll sleep better. ÷¼
~
Not sure how happy I will be to see this fella on my front porch first thing in the morning. I know that I am going to sleep just fine. He has had my proposal for a month.
Sounds to me with his response you are not needed.
The sealed plat is confirmation enough what else needs to be confirmed.
If the lawyer wants you to recertify what you've done then you should be paid accordingly.
Brad Ott, post: 389969, member: 197 wrote: The non-refundable retainer fee for this service is $1,250 due at the time of execution of this agreement.
I take a somewhat different approach. As I work, the retainer is treated as a deposit against fees to be billed at an agreed schedule (which includes minimum charges for certain activities). The retainer isn't non-refundable in that if the parties agree to settle out of court, I'll refund whatever balance there is left as of the close of business on the day that I am notified of the settlement. Naturally, if the matter comes alive again (as sometimes happens), I'll ask for another retainer.
I have two distinct comments, based upon years in business, and over one hundred appearances as an expert witness in land surveying.
A. Testifying, or waiting to be called, will just ruin your entire day, so billing testimony in day increments is reasonable.
B. Never give your client the impression you are sticking it to them, because they don't like it. I would not ask for a non-refundable retainer.
Bruce Small, post: 390121, member: 1201 wrote: I have two distinct comments, based upon years in business, and over one hundred appearances as an expert witness in land surveying.
A. Testifying, or waiting to be called, will just ruin your entire day, so billing testimony in day increments is reasonable.
B. Never give your client the impression you are sticking it to them, because they don't like it. I would not ask for a non-refundable retainer.
Are you willing to share with me your vanilla contract wording?
No problem as long as understands that if you exceed $1,250.00 he is responsible to pay the hourly rate. I would want it in writing. You may want an additional retainer amount at that point and before proceeding further. When he gets to court, your fee is the least of his problems.
We had a good discussion at our meeting last night. Jerry and Matt are very knowledgeable about being an expert witness; they gave some good advice and answered some tough questions.
The first rule, they said, was work for the attorney not the client. It was a lengthy explanation, but the gist was; attorney-client confidentiality goes for the surveyor too. If you discuss matters with the client, the other team can use that information against you and the client.
I asked them about the client trying to dictate your fee and basically, they said; your client can't tell you how to do your job. If you tell the judge that the client told you what to do; he's going to get the impression that you don't know what you are doing.
Attorney's won't necessarily try to break you down, but they will try to get you to agree to there side of the argument. stand behind your reasoning and have the information ready to back it up....
Got subpoenaed.
Brad Ott, post: 390169, member: 197 wrote: Got subpoenaed.
Remember if they aren't paying you as an expert, then you have no professional opinion.
I got a subpoena from an Attorney on a private survey I did. I responded, here is my rates (4 hour minimum) and I can be available on these dates. The Attorney called me, he apologized for the subpoena but he didn't have my phone number and he can't just send me a letter. We worked out date and time and when I appeared at his office he immediately handed me a check (required by Statute). He was working for an Insurance Company so money was no object. He was working for the other side. It was easy money really, answer questions he didn't really understand because they were written by his LS consultant (some guy I never heard of).
I would go ahead with the meeting with former client and his attorney at regular rates, presuming that meeting is for the attorney to get a feel for what he might need you to testify to. If they want to list you as an expert in their disclosures, then you are back to your previous proposal, regardless of whether they insist that they only need you to verify that the copy of the map is a true and correct copy of the original. They don't need you to appear for that. you can simply wet stamp a copy and that would suffice. Or if the map is recorded and the recorder's (or clerk's) certificate appears on the copy, then it should be presumed to be a correct copy of the originally filed map.
If they want you to be available to be called as an expert, then it won't be to simply verify the map. They are counting on you not wanting to appear ignorant on the stand and answering whatever questions come up about the survey. If the attorney has good sense, he will want the contract to be between you and him so that any correspondence generated can remain confidential in case you discuss any aspects of your survey which are not in your client's favor. (and because he will simply pass on the cost of your services, along with an appropriate markup for having coordinated those services, to his client)
I would structure the fees to cover preparation, travel, and meetings to bill out on T&M at your regular rates, and depositions and in-court time at an expert witness rate of 2 to 3 times your regular hourly rate and in either half-day or full day blocks, depending upon the locations of the depositions and hearings relative to your office. Sometimes if the proceedings are fairly close to your office, they may want you to be "on call", meaning not hanging around at the courthouse at your expert rate, but remaining nearby and ready to get to court on rather short notice. If that is something that your work schedule can accommodate, you could designate an "on call" rate that is equal to, or somewhat less than your regular billing rate, depending upon how remaining ready to go to court during "on call" time affects your other workload.