Should you ask for a retainer? Yes, you should. If a case appears simple, a modest retainer fee equivalent to two or three hours of your consulting rate may be fair. You can reduce your initial retainer fee under special circumstances or for limited scope of work. In the same fashion, you can raise your retainer at other times when the initial work will be dramatically greater. After assessing how many hours of initial work you will need to undertake, let that guide you to the size of your retainer.
Be particular about the initial expectations so that you can quantify the initial retainer. Ask, and agree, on the materials you must read, the research or investigations you must complete, and consider what tests you must run. Confirm your understanding with an email, a fax or a letter, depending on the urgency of the work. Then, wait until you’ve received the retainer check or payment before starting the work. If the attorney tells you that the job is urgent, send him wire transfer information so that he can wire your retainer directly to your bank account. This can easily happen in a 24-hour period.
Always ask for an initial payment before you begin work on a case or you might end up working for nothing. If, by the end of the case, the hours you spent did not consume the retainer, you should refund the Difference.
Occasionally an attorney will ask you to do work for free. A free first telephone conversation represents goodwill and can be an encouragement to engage you when the case seems right. Doing analysis or research for attorneys and charging them nothing is unprofessional. On the other hand, you can certainly consider pro-bono work from time to time, just as attorneys occasionally do.
One novel element remains to consider. As your reputation grows, attorneys will sometimes retain you just to be sure that the other side cannot employ you. As a result, you should value the use of your name as an expert witness, and consider imposing a minimum fee whenever an attorney wants to retain you. You can apply this minimum charge against services, so it will have no impact on the total cost to the client unless the attorney never uses your services.
In my retainer contract, my terms require both an advance retainer and a replenishment of all or part of the retainer from time to time. The amount of replenishment depends on what additional work the attorney requires of me. Some experts require that the attorney or client maintain a minimum retainer. To do so, you should bill to restore that minimum whenever the balance in the pre-paid account for the client falls below a specific level. Ask for new advance payments whenever it becomes apparent that additional work will deplete the existing balance in the client’s account.
Generally, your client will not have to replenish the retainer if the additional work only requires one to several hours. But you should request advance payment in the following instances:
1. If a sudden surge occurs in discovery materials for your review.
2. If your attorney requests that you travel for conferences and meetings.
3. If any investigations require you to travel to job sites or company offices for observations, meetings, and any other explorations.
4. If your deposition has been scheduled. You will have to reserve a variable number of days in your schedule for the deposition, for a pre-deposition conference, and possibly for the travel time as well.
5. If a trial has been scheduled; you will have the same factors of blocking out time for possible travel, meetings, and testimony.
You should also estimate airfare, hotel, car, and food expenses as well. You can contain those in requested advance payments. If you ask for advance payments, ask for them well in advance. Larger companies often have processing delays for invoices or payment requests. You do not want those delays to stand in the way of your work. Do not wait until the last minute to ask for advance payment. Your business needs to be organized enough to estimate the size of advance payments. You can base those payments on discussions with the attorney about the progress of the case and what work you anticipate will be required of you.
The most important advance payment is the one that precedes a trial. Be firm in asking for advance payment for your anticipated billings before traveling to testify at a trial. Clients have now spent a large sum of money by the time a trial begins. If the client loses in the trial, he either may not be able, or choose not, to pay you. But because he needs your testimony at the trial, put the pressure on him to pay beforehand and not on you to collect afterward.
Receiving advance payment for your trial testimony time permits you to respond “No” to the potential cross examining question of whether the client owes you any money.
If the client has now paid you, you can honestly point out that the verdict in the case will have no affect on your testimony.