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Although since I retired I mostly do pro bono work, I still do some paid consulting.  When I consult on an analysis as an expert for a lawsuit, I charge my straight hourly rate  with a higher  hourly rate for court or deposition time. 

A few attorneys who are not clients, said that it is not unethical to charge something like 2/3 of my regular fee and 5% of any award. They said this is especially true when the attorney's clients are not well off.

 
What is the experience of other consulting statisticians?

What do others do about payment for work in a legal situation?

What is your reaction to having part of payment being contingent?

What is your reaction to agreeing charge 2/3 for immediate payment and 1/3 after the case is settled no matter which way the court decides?

Do you think it weakens one's credibility as an expert if you take contingent or delayed payment?


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Arthur Kendall
Social Research Consultants
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My experience as expert witness in a legal case, and my sense from talking with others who do this extensively is this:
1 - Get paid up front. Period. Assume that after you go to court you will receive absolutely nothing. Don't even start until the attorney demonstrates seriousness to you by delivering a check. Really, if your side looses you may not get paid. Get paid up front.
2 - Any expenses and non-upfront money must be paid before you set foot in court. Attorneys understand that loosing clients will likely stiff them; learn from their experience.
3 - Don't buy into the drama: As I understand it, it often devolves to dueling experts who end up cancelling each other out. Assume your testimony will not determine the outcome.
4 - To directly answer your question about contingent fees: Unless you'd be truly satisfied receiving NO contingent fees, don't even go there.

Burnt by experience,
Al

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Al Best
Associate Professor
Virginia Commonwealth University
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Personally, I'd be strongly against a contingency award because it creates a conflict of interest.  When you have a financial stake in the outcome your judgement could be more easily called into question, not to mention the possibility that you actually might begin to stretch the power of the analysis if the "We need to win this case" mentality creeps in.  You really need to maintain objectivity and protect against bias.

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Jeffrey Proehl
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I also do not accept contingency payment. No matter how pure someone is, a perceived conflict of interest is likely to create problems.

And, I do have a written agreement with attorneys and sometimes wth others. I have a simple one-pager that they sign. Over many years of practice I have lost out on payment with only 4 clients, and two of them were attorneys. If the introductory conversations have the right feeling, I then trust the person. 

Best wishes,

Nayak



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Nayak Polissar
Principal Statistician
The Mountain-Whisper-Light Statistics
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Original Message:
Sent: 05-12-2013 19:22
From: Jeffrey Proehl
Subject: Partially Contingent reimbursement in lawsuits

Personally, I'd be strongly against a contingency award because it creates a conflict of interest.  When you have a financial stake in the outcome your judgement could be more easily called into question, not to mention the possibility that you actually might begin to stretch the power of the analysis if the "We need to win this case" mentality creeps in.  You really need to maintain objectivity and protect against bias.

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Jeffrey Proehl
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I do a fair amount of expert witnessing in administrative regulatory hearings and sometimes in federal district court  in two types of cases, those dealing with measurement issues in energy conservation programs (where you are measuring energy saved by a program or contractor) and those dealing with the need for and optimal design of low income payment assistance programs for helping households unable to pay their "cost of service" utility bills consistently (with the economy in stagnation there is a lot of this now, way beyond the level of officially poor families up into the middle classes).

It is not unusual for opposing counsel to ask what I am paid for analysis and the basis for and manner of payment, and occasionally to try to portray me as a high paid "hired gun," rather than simply allow me to present evidence and then contest the evidence.   At the same time, counsel for our side often does the same thing to the expert witnesses for the other side.  I would suggest avoiding a contingency arrangement because it might lend force to opposing counsel's attempt to portray you as a dollars only oriented "hired gun."  If they are good at this, they can largely discredit your testimony before having addressed it directly.

The intersection between statistics and law has very sharp edges and traps for the unwary that you learn about through experience within the juridical structures.  I usually ask the attorney managing the case for the side I am on whether they see law and statistics/applied science as two ways to pursue truth.  Some do.  But the usual answer is that the legal process is a way to arrive at the rendering of a decision only and truth is relevant as a tool in argument rather than the goal of the process.  In other words they are doing instrumental argumentation to destroy the opposition while we use (statistical and applied science) argument to try to find out what is true.  We seek truth through good design and measurement, so be conservative and careful not to give opposing counsel handles they can manipulate.  Your goal should be to make them address the implications of your analysis and results.  How you structure payment is part of that.
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Hugh Peach
H. Gil Peach & Associates, LLC
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Original Message:
Sent: 05-12-2013 19:22
From: Jeffrey Proehl
Subject: Partially Contingent reimbursement in lawsuits

Personally, I'd be strongly against a contingency award because it creates a conflict of interest.  When you have a financial stake in the outcome your judgement could be more easily called into question, not to mention the possibility that you actually might begin to stretch the power of the analysis if the "We need to win this case" mentality creeps in.  You really need to maintain objectivity and protect against bias.

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Jeffrey Proehl
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Thanks for the feedback.  All of the replies so far have been what I was thinking.

I think that in the future the only thing I'll do differently with attorneys is to get a retainer up front.

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Arthur Kendall
Social Research Consultants
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Original Message:
Sent: 05-12-2013 21:49
From: Hugh Peach
Subject: Partially Contingent reimbursement in lawsuits


I do a fair amount of expert witnessing in administrative regulatory hearings and sometimes in federal district court  in two types of cases, those dealing with measurement issues in energy conservation programs (where you are measuring energy saved by a program or contractor) and those dealing with the need for and optimal design of low income payment assistance programs for helping households unable to pay their "cost of service" utility bills consistently (with the economy in stagnation there is a lot of this now, way beyond the level of officially poor families up into the middle classes).

It is not unusual for opposing counsel to ask what I am paid for analysis and the basis for and manner of payment, and occasionally to try to portray me as a high paid "hired gun," rather than simply allow me to present evidence and then contest the evidence.   At the same time, counsel for our side often does the same thing to the expert witnesses for the other side.  I would suggest avoiding a contingency arrangement because it might lend force to opposing counsel's attempt to portray you as a dollars only oriented "hired gun."  If they are good at this, they can largely discredit your testimony before having addressed it directly.

The intersection between statistics and law has very sharp edges and traps for the unwary that you learn about through experience within the juridical structures.  I usually ask the attorney managing the case for the side I am on whether they see law and statistics/applied science as two ways to pursue truth.  Some do.  But the usual answer is that the legal process is a way to arrive at the rendering of a decision only and truth is relevant as a tool in argument rather than the goal of the process.  In other words they are doing instrumental argumentation to destroy the opposition while we use (statistical and applied science) argument to try to find out what is true.  We seek truth through good design and measurement, so be conservative and careful not to give opposing counsel handles they can manipulate.  Your goal should be to make them address the implications of your analysis and results.  How you structure payment is part of that.
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Hugh Peach
H. Gil Peach & Associates, LLC
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I am interested in hearing comments regarding the probity of accepting contingency fees for analyses that are NOT associated with court cases or the legal process, let's say for research on new product development or creating a new business.  Obviously one is incurring greater risk, but do people have the same concerns about the ethics of the situation?

I apologize if this question is construed as "thread jacking" the original posting.

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David Mangen
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Original Message:
Sent: 05-13-2013 17:35
From: Arthur Kendall
Subject: Partially Contingent reimbursement in lawsuits

Thanks for the feedback.  All of the replies so far have been what I was thinking.

I think that in the future the only thing I'll do differently with attorneys is to get a retainer up front.

-------------------------------------------
Arthur Kendall
Social Research Consultants
-------------------------------------------







Original Message:
Sent: 05-12-2013 21:49
From: Hugh Peach
Subject: Partially Contingent reimbursement in lawsuits


I do a fair amount of expert witnessing in administrative regulatory hearings and sometimes in federal district court  in two types of cases, those dealing with measurement issues in energy conservation programs (where you are measuring energy saved by a program or contractor) and those dealing with the need for and optimal design of low income payment assistance programs for helping households unable to pay their "cost of service" utility bills consistently (with the economy in stagnation there is a lot of this now, way beyond the level of officially poor families up into the middle classes).

It is not unusual for opposing counsel to ask what I am paid for analysis and the basis for and manner of payment, and occasionally to try to portray me as a high paid "hired gun," rather than simply allow me to present evidence and then contest the evidence.   At the same time, counsel for our side often does the same thing to the expert witnesses for the other side.  I would suggest avoiding a contingency arrangement because it might lend force to opposing counsel's attempt to portray you as a dollars only oriented "hired gun."  If they are good at this, they can largely discredit your testimony before having addressed it directly.

The intersection between statistics and law has very sharp edges and traps for the unwary that you learn about through experience within the juridical structures.  I usually ask the attorney managing the case for the side I am on whether they see law and statistics/applied science as two ways to pursue truth.  Some do.  But the usual answer is that the legal process is a way to arrive at the rendering of a decision only and truth is relevant as a tool in argument rather than the goal of the process.  In other words they are doing instrumental argumentation to destroy the opposition while we use (statistical and applied science) argument to try to find out what is true.  We seek truth through good design and measurement, so be conservative and careful not to give opposing counsel handles they can manipulate.  Your goal should be to make them address the implications of your analysis and results.  How you structure payment is part of that.
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Hugh Peach
H. Gil Peach & Associates, LLC
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The same conflict of interest issue comes into play.  If my income depends on whether or not the product turns out to look like an improvement, I cannot possibly be unbiased in the face of borderline results.  I'll either make assumptions in the product's favor or, in an attempt to be "overly honest", make assumptions not in the product's favor.

I remember one instance were a fellow employee told me he wanted me to show that the difference between their tires and ours was insignificant.  (I let you guess what the mean difference was.)  I told him that I could give him an estimate of the mean difference and put a confidence limit around it, but that I could not promise him that he would "like" the result.  When he decided to just do the analysis himself I felt relieved.

During my full-time consulting days a lawyer wanted me to explain the statistical aspects of some DNA evidence that the prosecution planned to bring against his client.  He already had a "DNA expert" but wanted a statistician as well.  When I told him that I couldn't know in advance whether my analyses would hurt or help his case he said something like, "I don't want a prostitute."  So I took that one on.
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Emil M Friedman, PhD
emil.friedman@alum.mit.edu (forwards to day job)
emilfrie@alumni.princeton.edu (home)
http://www.statisticalconsulting.org
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