EW Contract - InspectionNews

Mark Mustola · #1 (**permalink**) 09-30-2007, 02:03 PM

Is anyone willing to share their EW contract with me. Scott P., I already have yours. You you posted a copy for me last year on the ASHI board.

How many of you charge a retainer? If so, how much? Do you estimate the fees for the initial inspection, research, and report, or do you charge enough to maintain a balance to be used for future work?

Jerry Peck · #2 (**permalink**) 10-01-2007, 07:26 AM

Here is my old one.

Jerry McCarthy · #3 (**permalink**) 10-01-2007, 09:46 AM

EXPERT WITNESS WORK - Do I need a contract? – YOU BET YOUR BUTT!
A frequent complaint heard by folks who perform litigation support work is that they’ve had difficulty in collecting their fees. In almost every case experts who fail to get paid forget to get their contract, if they had one, signed by their client(s), beforehand. Regardless of whether it’s a lay client or the attorney you must have whoever you are consulting for to sign your contract before you perform any type of investigation, inspection or consultation. Have you ever heard of an attorney taking a case and starting work without a retainer unless they’ve agreed they’re working on a stipulated contingency fee contract?

I’ve made it a hard and fast rule to only be retained directly by the attorney representing the client due to “discovery.” In other words all information between you and the attorney is “privileged” and the other side will have to pay you what is specified in your fee schedule for deposing you. Never hesitate to ask an attorney to sign your contract because you may be concerned about the possibly offending him or her. Some may protest, but like inspection fees don’t allow an attorney to negotiate your fee at the start or I can assure you it will be all down hill from that point. They may complain that you should have completed the work in a shorter length of time or they may end up attempting to “stiff” you so as they say in the fight ring, “protect yourself at all times.” The term “trust me” is one be red flag!

Some experts have a contract outlining the terms, a separate fee schedule, and an engagement letter. Others have a contract that contains a fee schedule and an engagement letter. Others combine all three functions into one document, which is the type I recommend. In any case whatever you do your contract should include at the very least the following information:
• Contract (as a consultant, not an expert witness*)
• Fee Schedule
• Billing Schedule
• Expected Payment Schedule
*You are not an expert witness until the courts say you are! Until then you are a “litigation consultant.”

I always include my fee schedule with my CV in one package because without a signed and dated contract you may have a difficult time getting paid. Reporting unethical treatment to the attorney's bar association is in my opinion a waste of time. The option of suing the attorney is also a gamble. With a signed contract you should rarely experience a problem in collection and, in the event that you do, your chances of winning in small claims or superior court will be far better.

Jerry McCarthy · #4 (**permalink**) 10-01-2007, 10:10 AM

Jerry McCarthy - LITIGATION CONSULTATION CONTRACT
Office (650) 574-4603 – Mobile (650) 766-3716
jerry@homeinspectorlitigation.com
Home Inspector Litigation-Construction Consultant - Home
CONTRACT CONDITIONS:
1. All time is measured portal to portal.
2. The good-faith retainer will be credited against the final bill and any overages returned to the client.
3. Unless otherwise agreed to in writing, the “client” is the person to whom the cover letter is addressed, along with his/her employer if it is included as part of the client’s address. The individual client warrants his/her authority to bind the principal. If one or more other parties are to be responsible, each must sign a copy of the cover letter and each attachment page and return them to the expert witness’s office. In the event responsibility for the case changes hands, or in the event of a change of personnel, no entity is relieved of responsibility without the written approval of the expert witness.
4. In the event the individual addressee is employed by a public agency and the public agency is to be responsible, the individual addressee warrants his or her authority to bind the public agency unless otherwise stated in writing or unless the agreement is executed by the appropriate authority.
5. The client is responsible for paying all fees and expenses of the expert witness related to this engagement of services. This shall include activities in response to discovery efforts by other parties. As a courtesy, if the client wishes, the expert witness will bill opposing parties for time and expenses involved in responding to discovery. Credit will be given for payments received pursuant to this billing.
6. Trips requiring overnight stays will be billed for time spent on the case between 8:00 a.m. and 5:00 p.m., or such greater time as is actually worked and traveled.
7. The expert witness reserves the right to bill lost or wasted time in the event of a cancellation, whether the cancellation is caused by the client or the opposing party.
8. Fees and expenses are billed monthly or as time and expenses accrue, unless other arrangements are made with the expert witness.
9. Rates are subject to change on a calendar-year basis without notice.
10. Payment is due from the client within thirty (30) days of the invoice unless different arrangements are made with the expert witness. The expert witness reserves the right to charge a late fee of 1-1/2% per month, or fraction thereof, on all invoices not paid within thirty (30) days of receipt of invoice by the client. The client shall pay any and all collection costs,
including any legal fees and costs, incurred by the expert witness in connection with the collection of his/her account.
11. Unless expressly agreed to by the expert witness in writing, any cost estimates for services stated are for the client’sbudgeting purposes only, and are not quotes that are binding on the expert witness.
12. The client agrees to inform the expert witness of all history, facts, relationships and circumstances relevant to this agreement or the expert’s assignment that are available to the client. The client further agrees to advise the expert of the disposition of the case promptly and to advise whether there will be future need for the expert witness’s services in the
matter.
13. The client agrees to be responsible for and to make all necessary provisions for the expert witness to have access uponsuch public or private land as is necessary for the expert to perform his/her investigation and services.
14. Confidentiality. The expert witness agrees that the client’s identification and all information obtained from the client is and shall remain confidential and that the expert witness shall not release any information to any third party without the express permission of the client or a specific court order or subpoena. The expert witness shall not respond to any subpoena, court order or request there for without first giving the client reasonable notice of the request, subpoena or court order.
15. The expert witness shall keep detailed records of the investigation undertaken in regard to the incident in question. These records may include notes, sketches and drawings as may be necessary, and photographs, which will illustrate the finding of the expert witness. The expert witness shall consult with the client at an early date to determine whether photographs
should be standard print photographs, slides, digital photos, or a combination of the different types of photographs. Throughout his/her investigation, the expert witness shall keep the client apprised of the status and results of the investigation. Status reports may be oral or written, as may be appropriate under the circumstances; no written reports shall be provided unless required by the client.
16. To the extent possible or permissible, the expert witness will take custody of and maintain safe and secure any physical objects or articles requested by the client which the expert determines may be useful in describing the findings of the expert witness to others, or which the expert witness determines should be subjected to special testing. The expert witness will use reasonable care to safeguard such objects or articles; however, the expert witness will not be liable for the loss or destruction of such objects or articles if such loss or destruction was beyond the control of the expert witness.
17. Research reports, drawings and other documents prepared by the expert witness are instruments of service and shall, unless otherwise agreed, remain the property of the expert witness. The client may retain copies, but the information contained therein may not be used on any other case or project without the express written consent of the expert witness. The expert witness reserves the right to copyright documents prepared by the expert witness as instruments of service, subject to a license to the client for his/her own purposes. This provision is designed for the protection of the expert witness’s interests in the event the requirements of discovery suggest a widespread dissemination of the expert witness’s prepared documents unconnected with litigation arising from this case.
18. The expert witness agrees and warrants that he/she will provide the client with his/her best professional thought and judgment in performing the agreed services. The client agrees that no other warranty, responsibility or liability shall pertain, and any liability which the expert witness may incur here from shall not exceed the amount of the previously paid fee for those services.
19. The expert witness is retained and employed by the client only for the limited extent of serving as a forensic consulting expert witness, and the expert witness’s relation to the client shall, during the periods of rendering the services hereunder, be that of an independent contractor.
20. The expert witness shall be free to dispose of such portion of his/her time, energy and skill during regular business hours as is not required for service to the client in such a manner as he/she may see fit, and for such person, firms or corporations as he/she may deem advisable. The expert witness shall not be considered eligible under the provisions of this agreement or otherwise in any of the client’s group insurance plans or worker’s compensation benefits, nor shall the expert witness be entitled to participate in any other plans, arrangements or distribution by the client pertaining to, or in connection with, a pension, stock bonus, profit sharing or similar benefits for the client’s regular employees.
21. The expert witness shall not be held liable for any delay or failure to perform the assignment which is the subject of this agreement if such delay or failure is incurred directly or indirectly by fire, flood, explosion or other casualty, strike, labor disturbance, state of war, insurrection, riot, government regulation, either existent or future restriction, appropriations, or
any other cause beyond the control of the expert witness.
22. This agreement is to be covered by the law of the principal place of business of the expert witness.
23. All disputes for collection of monies due under this agreement, except as otherwise herein provided, shall be submitted to binding arbitration in accordance with the construction industry arbitration rules of the American Arbitration Association. Arbitrable issues under this paragraph shall be limited to the expert witness’s enforcement of the charge by the expert witness under this agreement, exclusive of any counter, cross claims or offsetting claim arising out of, or relating to, services performed by the expert witness under this agreement. Enforcement and execution on any arbitration award in
favor of the expert witness entered pursuant hereto shall not be stayed pending resolution by a court of law.
24. A good-faith retainer in the amount of $2,000.00 shall be deposited with the expert witness prior to performance of services. Such good faith retainer shall be administered as outlined in this document in provision 2 above.

Jerry McCarthy, Litigation Consultant
112 Madison Ave., # 204
San Mateo, CA 94402

I have read, understand and agree to all terms and conditions of Jerry McCarthy’s contract:
Client: _________________________________________________ Date: _______________
Client: _________________________________________________ Date: _______________
Case; #___________________
Litigants:__________________

Mark Mustola · #5 (**permalink**) 10-03-2007, 08:47 AM

Jerry and Jerry, thank you both for your replies the information really helps.

Do you find that Attorney's are reluctant to pay a retainer and be responsible for paying your fees? I would have thought that they would want you to have a contract with their client so the client would pay you directly.

I noticed both of you in your contracts listed an amount for the reainer. Is that a standard amount for each of you? Or are those numbers based on what you thought your initial inspection, research, and report would cost.

When a potential plaintif first approches an attorney with a complaint, that attorney tells them to have a home inspection. They are fishing for information to see if there is a case.

When you get a call from a home owner who says his attorney wants him to get an inspection what do you do? Would you get the name of the attorney an establish a contract?

Would you contract with the home owner for the inspection and document the fact if this goes on to litigation you will need a different contract?

At this stage client's don't want to pay a large retainer because they do not know whats going to happen.

Jerry McCarthy · #6 (**permalink**) 10-03-2007, 09:33 AM

West Coast Jerry replies to Mark in blue:
Do you find that Attorney's are reluctant to pay a retainer and be responsible for paying your fees? I would have thought that they would want you to have a contract with their client so the client would pay you directly.
Most of the attorneys I contract work with are long time repeat customers so you can appreciate none of them are “low bidders” and I’m part of their established team. They know what to expect and so do I. (usually) Performing consultations in construction defect and/or private inspection litigation work is not rocket science, but one needs to thoroughly know the rules of engagement. There are several good books on this subject for those that wish to get into it.

I noticed both of you in your contracts listed an amount for the retainer. Is that a standard amount for each of you? Or are those numbers based on what you thought your initial inspection, research, and report would cost.
Mine should be at least what East Coast Jerry’s is, but alas my contract is old and I’m remiss in not updating it.

When a potential plaintiff first approaches an attorney with a complaint, that attorney tells them to have a home inspection. They are fishing for information to see if there is a case.
No, not really, the client is normally already aware of what’s wrong and wants the guilty party who is usually the seller or the HI to pay for it. This usually triggers the “net” approach which is another way of saying they name everybody who has ever set on upon the property to see who has the deep pockets? Please note I use the terms “usually” and “normally” as the rules of engagement are not exactly the same across our country and can vary from area to area.

When you get a call from a home owner who says his attorney wants him to get an inspection what do you do? Would you get the name of the attorney an establish a contract?
For myself I tell the claimant, usually the home buyer, to retain an attorney who will then either retain me or another consultant, but I don’t contract with clients, only their attorneys.

Would you contract with the home owner for the inspection and document the fact if this goes on to litigation you will need a different contract?
No, asked and answered. A favorite statement of mine after an opposing attorney begins repeating his/her questions at deposition or court hoping they get a different answer.

At this stage clients don't want to pay a large retainer because they do not know what’s going to happen.
The attorneys get the large retainer and from that fund they hire their experts. Please note that one is not an “expert witness” until the courts accept them as such.
__________________

Jerry Peck · #7 (**permalink**) 10-03-2007, 09:14 PM

West Coast Jerry replies to Mark in blue: East Coast Jerry replies in red:
Do you find that Attorney's are reluctant to pay a retainer and be responsible for paying your fees? I would have thought that they would want you to have a contract with their client so the client would pay you directly.
Most of the attorneys I contract work with are long time repeat customers so you can appreciate none of them are “low bidders” and I’m part of their established team. They know what to expect and so do I. (usually) Performing consultations in construction defect and/or private inspection litigation work is not rocket science, but one needs to thoroughly know the rules of engagement. There are several good books on this subject for those that wish to get into it.
Agreed.

I noticed both of you in your contracts listed an amount for the retainer. Is that a standard amount for each of you? Or are those numbers based on what you thought your initial inspection, research, and report would cost.
Mine should be at least what East Coast Jerry’s is, but alas my contract is old and I’m remiss in not updating it.
Mine is also 'old' and out of date, if I started to do it again I would raise the retainer to $5,000, acknowledging that anything less than that would not be worth my time or their time (if the case is that small, you don't need an expert witness, take it to small claims court), and, that way, any monthly billing would certainly fall within the retainer, which would be replenished the following month by their payment, and, if not payment, you are not left holding the bag for any money owed - you've already got it.

When a potential plaintiff first approaches an attorney with a complaint, that attorney tells them to have a home inspection. They are fishing for information to see if there is a case.
No, not really, the client is normally already aware of what’s wrong and wants the guilty party who is usually the seller or the HI to pay for it. This usually triggers the “net” approach which is another way of saying they name everybody who has ever set on upon the property to see who has the deep pockets? Please note I use the terms “usually” and “normally” as the rules of engagement are not exactly the same across our country and can vary from area to area.
Agreed.

When you get a call from a home owner who says his attorney wants him to get an inspection what do you do? Would you get the name of the attorney an establish a contract?
For myself I tell the claimant, usually the home buyer, to retain an attorney who will then either retain me or another consultant, but I don’t contract with clients, only their attorneys.
Agreed.
However, before they get an attorney they may want you to do some on-site inspections, advise them that all such work is not privileged and is discoverable, whereas when done for an attorney that same work would be considered "work product" and is protected by privilege.

Would you contract with the home owner for the inspection and document the fact if this goes on to litigation you will need a different contract?
No, asked and answered. A favorite statement of mine after an opposing attorney begins repeating his/her questions at deposition or court hoping they get a different answer.
Agreed. (Asked and answered, although my answer was slightly different - see above.) I've had some which were 'not intended' to go to court, but which later did, therein lies the rub - you did the 'inspection', which is now not privileged, and you must now 'replicate' to the extend possible privileged work product which does not contradict the first stuff you found (assuming you found some things which do not help, and may even hurt, the client's case - that's a risk doing it this way).

At this stage clients don't want to pay a large retainer because they do not know what’s going to happen.
The attorneys get the large retainer and from that fund they hire their experts. Please note that one is not an “expert witness” until the courts accept them as such.
Agreed.
However, once accepted as an expert witness in one circuit, you are typically considered an expert witness in all courts in that circuit, and even elsewhere. That said, each judge will accept or reject you as an expert, and you are not an "expert" in their court until accepted as such. I've never 'not been accepted' as an "expert", I suspect that most 'experts' are basically almost always accepted based on the attorney 'bring their expert in to testify'. A judge could deem a previously accepted "expert" as not an expert, but I suspect that would be challenged by the attorney (never been there, so I'm guessing).

Jerry McCarthy · #8 (**permalink**) 10-04-2007, 11:13 AM

FWIW, I'm in total agreement with all East-Coast Jerry’s comments on my comments. Out here the court "circuits" are bounded by county lines, so once accepted as an EW say in San Francisco County, Santa Clara or San Mateo County it's almost a certainty you will continue being accepted within those counties as such.

Another point of interest is that most all of the older professional EW working in the SF bay area know and respect each other and will go out for coffee or an adult beverage after testifying. We also trade info regarding dead-beat attorneys, of which there is no shortage. CA has more licensed attorneys than the entire country of Japan. To say we are not living in a very litigious society ranks as a classic misunderstanding of the century.

Jerry Peck · #9 (**permalink**) 10-04-2007, 01:52 PM

West Coast Jerry,

One thing I found which worked (for me) as that I marked *EVERY* report I did, on every page, down with the copyright information, as "©This report is work product and is copyrighted by ... ".

This statement "implied" that, even though I was doing this inspection 'for my client', its intended purpose was for 'legal action' for an attorney. I've been involved in several cases where other inspectors and I had done separate inspections on the same property, their reports did not state that their report was 'work product' and was deemed "discoverable" by opposing attorneys, whereas mine were deemed as 'privileged' (apparently anyway, mine were not asked for by the other attorneys - the other inspectors reports were, mine were the only reports marked as "work product"). Probably could have been argued in court that mine were not actual "work product" and therefore were not privileged, but there was also apparently no desire for the opposing attorneys to try to cross that bridge.

At least that's what us inspectors surmised, anyway.

Jerry McCarthy · #10 (**permalink**) 10-04-2007, 04:50 PM

A good point Jerry and one I also employ and recommend to every inspector when I review their regular inspection reports. I'm a great believer in setting as many legal "speed bumps" as possible in protecting ones ass-ets. It's really hard to believe just how much attorneys including judges and arbitrators differ in their interpretations of the law and I've learned after so many years at this game that nothing surprises me anymore, even the lethal ignorance exhibited of our government. There is no animal as a “slam-dunk” law case and – ah but I digress…….
PS: Highly recommend Stanley Brodsky’s books on Expert Witnessing for those that wish to enter this field.

Mark Mustola · #11 (**permalink**) 10-05-2007, 11:26 AM

I am learning a lot, I'm greatfull for everyones willingness to share infromation.

Joseph Syracuse · #12 (**permalink**) 02-25-2008, 12:17 PM

Hello, I'm looking for an Engagement Letter for my clients to review and sign. Hopefully there is someone out there that can advise me where to find or refer me to one that might be used often.

Appreciated greatly
Joe Syracuse

Billy Stephens · #13 (**permalink**) 02-25-2008, 01:46 PM

Quote:

Originally Posted by Joseph Syracuse

Hello, I'm looking for an Engagement Letter for my clients to review and sign. Hopefully there is someone out there that can advise me where to find or refer me to one that might be used often.

Appreciated greatly
Joe Syracuse

Don't Do It Man Twenty-seven years and counting for me.

If you are talking about a Pre Inspection Agreement this is what I use.

It has some verbage that is required by my state and New York may have somethings that is required in the agreement but I don't know.

Jack Feldmann · #14 (**permalink**) 02-27-2008, 05:58 PM

Billy,
You may want to run a grammar and spelling check on your contract. I found a couple things when I briefly looked it over.
JF

Billy Stephens · #15 (**permalink**) 02-27-2008, 06:59 PM

Quote:

Originally Posted by Jack Feldmann

Billy,
You may want to run a grammar and spelling check on your contract. I found a couple things when I briefly looked it over.
JF

Thanks,