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Expert Witness Question - To return or not return the nonrefundable retainer?

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  • Expert Witness Question - To return or not return the nonrefundable retainer?

    Defense attorney retained me on a DVT case 6-8 months ago.. I reviewed.. signed off the affidavit.

    A week ago.. I had received a nonrefundable retainer and signed contract agreement from the opposing attorney.. I did not know upfront this was the opposing attorney.. just knew that it was a new case for me. Again.. no clue that I had seen or reviewed this case nor did the opposing attorney knew upfront. I reviewed the case over the weekend and then today.. I received an email from the opposing attorney informing that I've reviewed this case already for the defense attorney.

    I had still spent my time already and reviewed the case.. it was a run of the mill DVT/PE case.. so i had no recall on the case while I was reviewing. Am i obligated to return the nonrefundable retainer? They contacted me upfront, mailed me retainer and signed contract agreement with medical records. Now they're requesting refund. Appreciate any input!

  • #2
    I think you owe the non-refundable retainer back. Prior to accepting a new case, most attorneys do a conflicts check to ensure that they can take the case. An expert should do the same since you cannot represent both sides.

    Giving the retainer back, profusely apologizing, and eating your time may result in more referrals from this attorney. Keeping the money, will ensure you see nothing.

    You must be well regarded, because some experts get ‘typecast’ as plaintiff or defense experts or do the majority of their work for only one side.

    You may need to disclose that you’ve reviewed the information from both sides and this could potentially disqualify you from the case. I’d tread lightly and disclose this to the first party who retained you before they’re caught off guard by opposing counsel.
    Last edited by jbmitt; 11-18-2020, 06:48 PM. Reason: Typos


    • #3
      Did you sign anything with the defense attorney? I would have thought you would have agreed to work exclusively for the defense. If so then this seems pretty straight forward to me, you couldn't provide the service, so can't keep the money.



      • #4
        I’d return it. Nobody’s fault.


        • #5


          • #6
            definitely return it.
            if you want to do expert work i think it's best to demonstrate reasonable behavior across the board


            • #7
              "I did not know upfront this was the opposing attorney.." Why?


              • #8
                Interesting thought exercise: Did you rereview the case? If so, did your opinion change at all based on which side you were reviewing it for?


                • #9
                  Before accepting any expert work, I always ask who are the defendants, who the opposing law firm is and what the case is about, in order to make sure that the case is appropriate and to avoid conflicts of interest. This step may have saved you the hassle of the duplicate review.

                  Additionally, it is probably not a good idea to get on the bad side of plaintiff law firms.


                  • #10
                    It was only time you spent. Just return it and chalk it up as a lesson learned. Or consider it as a patient who used your services and he or the insurance did not pay.


                    • #11
                      Appreciate everyone's feedback! This never happened before.. and i get around 1-3 cases a month so it never occurred to me that a retaining attorney would also be the opposing attorney from a case I reviewed a while back?! i thought it was a bit humorous... will definitely return! Thx all!