A lot has changed over the last few years for expert witnesses, and that change will continue apace. Many expert witnesses will have been bemused and still will not understand the apparently topsy-turvy decision making of the Legal Services Commission (LSC) about fees. The standard fee rates that have London experts being paid less than those outside London are of course perplexing. Some of the determined rates of pay for different experts seem arbitrary at best.
The agreement to undertake publicly funded work is determined by the agreed letter of instruction. All experts need to be clear that this forms the basis of their contract with the instructing solicitor. The contractual terms contained in that letter must be scrutinised by the expert carefully, and instructions only accepted if the obligations and expectations are fully understood and agreed. Experts require the consent of the court to provide reports in many cases, reports and assessments are in respect of parties to the proceedings, publicly funded cases the LSC pays the bill, but the contractual relationship is between the expert and instructing solicitor.
Cancellation times, fees, charging rates and disbursements all subject to that contract. Changes to legal aid bring their own challenges, letters of instruction may contain reference to publicly funded parties and to privately funded parties. Again understanding the fee split between private and public funding is critical for experts in fact require separate contracts to be entered into.
Experts must be mindful that clauses that talk about recoupment, clawbacks and taxation are principally about reduced fees and returns of fees months, and in some cases years after they may have originally been paid. Justification of time spent, papers read, client seen and preparation of report will become the norm. It is a depressing thought that any time down to a six minute unit may be challenged by the solicitor instructing you, the legal services commission or indeed the court. Record-keeping becomes an evermore vital task.
It is little of little comfort to anyone involved in these proceedings that experts are now getting a far greater understanding of the processes that solicitors have been subject to for some time.
It is absolutely critical that anyone embarking on an expert report understands who the contract is with, what the contract is for, future potential repercussions and the real basis for payment. You must be completely satisfied that you understand the implications before consenting to undertake a piece of work.
Decameron Software produce niche software for expert witnesses to enable them to easily and effectively justify every moment spent on every case, and easily prove it! More information, please don’t hesitate to drop us an email or give us a call.