Some private investigators specifically solicit litigation related assignments as a matter of choice. Others might intentionally decline litigation work and do their best to avoid winding up in a courtroom or deposition.
Either way, many private investigators find their way into a courtroom or deposition hearing when they’re drawn in by opposing parties, usually because their testimony or the evidence they helped procure is deemed relevant to the lawsuit at hand. In these cases the private investigator often is served a subpoena to show up.
If the private investigator is subpoenaed by opposing counsel to provide testimony in court, or to be questioned in a deposition, the question often arises: who is responsible for paying investigator’s hourly rate?
Opposing counsel will sometimes attempt to cast the investigator as a “Witness of Fact,” meaning that they are only due a paltry $10-$15 per day–clearly not enough to pay the bills!
This issue was actually litigated in the case of Leland Phelps v Dennis Moran, LeGros, Buchanan & Paul, (King Co. No. 96-2-12341-1).
Mr. Phelps had been subpoenaed and called in for a discovery deposition by opposing counsel in a case that he had been previously involved in. The mistake that Phelps made was that he assumed that he would paid his regular hourly rate of $95 per hour and he did not discuss his compensation prior to or immediately following his deposition.
When Phelps ultimately billed the opposing counsel, they denied him payment, arguing that he was only due a witness fee of $10 per day.
In a move that can either be described as petty or principled, the attorneys that had original hired Mr. Phelps (his original clients) represented him pro bono and filed a lawsuit against opposing counsel for $363!
While the ensuing lawsuit was obviously not practical and perhaps the result of pride instead of rational thinking, the lessons that can be gleaned from it should be of interest to other private investigators.
In defense of his hourly rate, Mr. Phelps argued that “he could not stay in business, assisting the adversary system, if he was not paid a reasonable fee for his time, and that limiting private investigators to $10.00 per day would result in the elimination of that group of professionals from litigation” (CruiseLawUSA).
As to why his original clients should not have to pay his fee, Mr. Phelps (and his counsel) maintained that “the party retaining the investigator should not be required to pay for depositions noted by opposing counsel, when it is opposing counsel who controls the time expended and is able to impose undue expenses on the hiring party” (CruiseLawUSA). In fact the opposing counsel had provided a perfect example of a how such an expense was “burdensome” on Mr. Phelps client because they had previously called him to appear at a deposition that was cancelled after he had arrived.
Unfortunately, the judge ultimately did not enforce Mr. Phelps’ demand that he be paid at his hourly rate and he left the parties where he found them. In doing so, the judge pointed to the fact that there was no agreement on payment of fees in advance of the depositions at issue. In other words, Mr. Phelps had erred in not communicating his hourly rate and insisting on fee retainer agreement before the deposition took place.
There are two key issues that private investigators should keep in mind to avoid “working for free” if they are doing any kind of work that might involve litigation:
1. Discuss with the primary client beforehand who will pay if the investigator is required to testify or be deposed. If your clients are attorneys–all the better–as they can often shield you from unpaid expert witness work. Having some language in your client agreement is recommended.
2. Communicate upfront with opposing counsel about the investigator’s hourly rate.
One of the challenges private investigators face is that they may sometimes be called to testify about “factual matters,” i.e. being called in as a Witness of Fact–which unfortunately only entitles the investigator to an insignificant “daily rate.”
While it is clear that private investigators (1) use their professional expertise to discover facts, and (2) it serves public policy to have investigators serve the judicial system and therefore be compensated as professionals at fair hourly rates–this case highlights the importance of private investigators discussing their rates upfront with opposing counsel in advance of discovery depositions or court hearings.
In some cases, if the opposing counsel refuses to pay the investigator’s fee, the private investigator can then move for a protective order or take the matter before a judge.
In fact, it is fairly common for attorneys to seek court orders mandating expert witness fees for their expert witnesses when opposing counsel seeks to depose them. In this way, the retaining counsel is not footing the bill for what might otherwise be a lengthy, and costly, discovery “fishing expedition” undertaken by their opposing counsel.
For example, in the case of LaShawn English v. District of Columbia, the plaintiff sought a deposition of Defendant’s expert witness and was informed by the Defendant’s attorneys that although the expert charges $250 per hour, he would require a pre-payment with a $1,000 minimum. The plaintiffs attorney’s balked at the fee and actually sought an order from the judge arguing that the prepayment was excessive.
The judge, however, agreed that $250 per hour was a reasonable rate for the expert witness, but agreed that a $1,000 prepayment was excessive–ordering that the prepayment be lowered to $500.
This is an example of how your client can shield you from unpaid “expert witness” work as a private investigator. Of course, it helps if they are attorneys!
So what can we learn from these cases about how private investigators can avoid working for free? Two things stand out clearly:
1. Discuss and agree with your client how these types of situations will be handled if they come up.
2. Communicate and insist on an expert witness fee with opposing counsel if you are subpoenaed.
Stay safe out there!