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When Bilzin Sumberg Dunn Baena Price & Axelrod hired Coral Gables, Fla. psychologist Jerry Poliacoff two years ago, he had served as an expert witness in 150 cases and had never had trouble collecting his fee from attorneys. Poliacoff says Bilzin Sumberg hired him to conduct an independent medical examination, review records and attend a deposition in the case of a woman who was suing Bilzin’s client, Fine Air of Miami, for sexual harassment. Poliacoff submitted one bill, for $2,340, and was paid by the Miami law firm. But when he submitted his second and final bill, for $2,211, two months went by and he didn’t receive payment. When Poliacoff called Bilzin Sumberg to inquire, he says, he was told that Fine Air had sought Chapter 11 bankruptcy protection from its creditors. Bilzin attorney Mitchell Widom mailed Poliacoff a copy of a bankruptcy claim form and graciously offered to “assist [him] by filing it with the bankruptcy court.” But the psychologist insisted that since the 75-attorney firm hired him, it was responsible for paying him. So he recently filed suit in small claims court to get his money. “Those guys bit the wrong dog,” says Poliacoff, who teaches continuing legal education courses for the Florida Bar. “In 15 years of practice, I may have had to wait to get paid on occasion, but I’ve never been stiffed.” Poliacoff is not the only expert to sue an attorney over nonpayment of a bill and ask the courts to decide who ultimately is liable for paying expert witnesses — the attorney or the client. The irony is that law firms themselves often face the deadbeat client problem. Many firms have been stiffed or have been asked to reduce their fees after losing a case or winning a smaller-than-expected award. Yet that doesn’t necessarily translate into sympathy for the plight of the unpaid expert. There have been two major Florida cases on this issue, both from 1989. In one, Kates v. Millheiser, a Miami-Dade County Court judge found that the attorney was not liable for the expert’s bill, but the appellate division of the Miami-Dade Circuit Court overturned the County Court decision. The 3rd District Court of Appeal reinstated the lower court ruling that the attorney wasn’t liable, noting that the appellate division failed to give a reason for its reversal. In the second case, Andrew H. Boros, P.A. v. Arnold P. Carter, M.D., P.A., a Miami-Dade County Court judge and the 3rd DCA found in favor of the expert, ruling that the attorney was liable for the fee. Joy Bruner, the Florida Bar’s assistant ethics counsel, says she and other Bar staffers receive calls from attorneys from time to time asking for ethical guidance on this issue. But Bar officials decline to offer advice, citing the two conflicting appellate decisions. In fact, Bilzin Sumberg called the Bar for advice in the Poliacoff matter, and that’s how it found out about the Kates precedent. It cites Kates in asserting that the law firm is not liable for payment. “Unless there’s a specific agreement, it’s the clients’ responsibility,” says partner Rick Dunn. Managing partner John Sumberg further explains his firm’s position. “When someone goes into bankruptcy, everyone gets hurt,” he says. “While I feel deeply sorry that the doctor didn’t get paid, there’s no basis for him looking to us. We didn’t get paid either.” LAWYERS WHO PAY But several firms take a different view. While they prefer clients to pay the witnesses directly, their lawyers generally dip into their own pockets for small amounts like $2,000. Marc Nurik, a partner at Ruden McClosky Smith Schuster & Russell in Fort Lauderdale, Fla. says he always pays the expert witnesses himself — even in the rare instances when a client does not pay — because he’s been burned himself by deadbeat clients. But Nurik says he generally avoids eating the cost by having clients put aside expense money for expert witnesses. “Whether I’m legally required to or not, I feel I should pay,” Nurik says. “It’s bad policy to leave the witness high and dry. You depend on expert witnesses — and your reputation.” Ron Ravikoff, managing partner of Zuckerman Spaeder Taylor & Evans in Miami, also likes to work out the payment arrangements in advance. “When we hire an expert witness, we discuss ahead of time who will pay, the client or the law firm,” he says. “My preference is to have an agreement where the client will have responsibility, and have them sign off on the contract. But in a smaller case, it would not be atypical for us to pay.” The question of whether to pay expert witnesses when the client refuses to is a difficult one, agrees Bryan Cleveland, a partner at Ferrell Schultz Carter Zumpano & Fertel. “If it’s a doctor we’ve worked with and known before, we’d probably pay his fees,” he says. PREEMPTIVE MEASURES Law firms sometimes ask experts to reduce their fees if their client loses the suit. Miami psychologist Oren Wunderman, who has worked as an expert on 100 cases, says that when he’s been asked, he’s frequently agreed to a reduction — “if it’s a fair request.” But he notes that he’s never been completely stiffed. He takes special precautions in child custody cases, demanding a retainer. That’s because “they’re all mad at me at the end,” he explains. Nurik says he’s increasingly finding that other experts, too, want to be paid up front, to avoid situations like the one between Poliacoff and Bilzin Sumberg. Poliacoff will have his day in court on May 29, when Miami-Dade County Judge Ellen Sue Venzer rules on Bilzin Sumberg’s motion to dismiss the case. Regardless of the outcome, the psychologist has taken steps to ensure that he’s never stiffed again. Just like an attorney, he’s drafted a fee contract that he will require all attorneys to sign before he agrees to serve as their expert consultant or witness. The contract makes the law firm, not the client, responsible for paying his fee. And to ensure that none of his colleagues face this problem in the future, he sent a copy of the contract to the American Psychological Association.

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