In general, it is the hope of the parties to pay the witnesses from the proceeds of the funds recovered after a successful wrongful death lawsuit.
But in the meantime, the witnesses need the funds to secure their attendance, and also to make subpoenas effective and enforcement.
Practically, this is how it works.
In A Wrongful Death Lawsuit Who Pays For The Witnesses? (EXPLAINED)
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Attorney Fee Agreements Govern Who Pays The Witnesses And When
First and foremost, the agreement between the attorney representing the party/parties in a wrongful death lawsuit will govern who pays for the witnesses, and when.
In general, most attorney fee agreement contain a clause that states that the client is responsible for all fees and expenses in the case.
This includes witness fees.
Sometimes the attorney fee agreement will state specifically that the client must pay for the fees as the fees are incurred.
Sometimes the fee agreement will state specifically that the client must pay for the fees within a set time period, like 30-60 days.
Sometimes the fee agreement will state that the client is required to deposit a stated sum of money for the attorney to hold, and then use over time as expenses and fees arise.
If that pot of money gets depleted, the client will be asked to replenish it.
Sometimes (and this is often the case in contingency fee agreements), the fee agreement will state that the client is responsible for fees, but that the attorney will pay the fees and costs from his/her firm’s accounts, and that the client will be expected to reimburse the attorney at the conclusion of the case.
It is the expectation that the client reimburse the attorney for the fees regardless of whether the case is successful or not.
Attorney Fees vs Costs/Expenses In A Contingency Case
In a situation where the attorney and the client have agreed to a contingency fee arrangement, the attorney is taking on a huge risk that he/she will work very hard and still lose the case.
In a contingency case where the recovery is $0, or even a very small amount, the attorney will not be paid for some or all of his time.
But in general, the “contingency” part of the fee arrangement extends only to “attorney fees” and not to case costs and expenses, such as witness fees.
This is important for a client to understand, especially when the advertising states specifically that they attorney will “be paid nothing” if the case doesn’t result in a recovery for the client.
The attorney will demand no payment his attorney fees.
But the attorney will still demand payment of the costs and expenses incurred on behalf of the client’s case (records fees, filing fees, even postage).
If There Is No Recovery, Who Pays For The Witnesses?
Ultimately, the client in the wrongful death case is responsible for paying all the expenses, including witness fees.
Unless the attorney fee agreement states that they attorneys will bear all of this cost, the client will be left with the expenses bill, regardless of how the case turns out.
If There Is An Open Case, Who Is Actually Handing The Witness The Money?
In general, if there is an active case happening, the attorney will not be asking the client to write a check and hand it to the witness.
In general, the attorney will have his legal assistant prepare the subpoena, attach the attorney’s check with the correct witness fee amount to the subpoena, and then have a process server serve the subpoena appropriately.
The reason the attorney writes the check and prepares the subpoena is usually to make sure it is done correctly and on time.
Since the attorney is responsible for the success of the case, they will usually not rely on the client to do these things, especially since the client may not have done them before.
In isolated cases, the attorney might have the client write the witness fee check, but that’s usually in a situation where the attorney isn’t sure that the case is going to succeed, and he isn’t sure that the client will pay him back for his expenses paid out.
When The Wrongful Death Case Is Over, How Do The Witness Fees And Other Expenses Get Paid Back To The Attorney?
Let’s say that the lawsuit resulted in large cash payment.
This usually arrives to the attorney’s office in the form of a cashier’s check, just one.
This check is not divided up at this time.
The attorney deposits the check, and then will wait several days to confirm that they money actually clears the banks, sometimes as long as 14 days.
Once the money clears, the first thing the attorney will do to start the process of disbursing funds is calculate the percentage of attorney fees she is to pay herself and her firm.
If the recovery is $100,000, and the attorney was entitled to pay herself 40%, then she’ll set aside $40,000 for her firm, leaving $60,000.
Next, from the remaining $60,000, she’ll then reimburse herself for the costs and fees associated with the case that were paid (advanced) on behalf of the client.
Let’s say those expenses were $5,000.
So they attorney pays herself the $5,000, leaving the client with $55,000.
It is important to note that the attorney’s reimbursement of expenses does not come from the attorney’s 40% contingency fee.
The expenses come out of the client’s percentage.
Once attorney fees and costs have been paid to the attorney, the remaining pot of money can then move towards disbursement to the client (assuming there are no other liens to address).
The client will be entitled to a detailed itemization of how each penny of the expenses were spent.
In A Wrongful Death Case, Could The Attorney Pay For The Witness Fees?
The attorney could pay for the witnesses out of his own pocket, and not seek reimbursement for the expense from the client.
This is not generally how wrongful death fee arrangements usually work, though it is possible.
Some states have limitations on what sorts of expenses attorneys can pay for, on behalf of their clients.
If you aren’t sure who is supposed to pay for the witnesses, usually the fee agreement will state specifically who is responsible for witness fees.
And in absence of a statement in the fee agreement, it is probably best for the client to assume that he/she will eventually be called upon to pay for the witness fees.
But What If The Witness Is An Expect Who Wants To Charge $10,000 or Even More? What If The Client Can’t Afford To Pay The Witness?
Sometimes witnesses are really expensive.
There are some cases where it is worth the expense of a really valuable expert witness.
Some cases it is not worth the investment.
Sometimes the client simply cannot afford they expert.
Sometimes the attorneys cannot afford the expert.
In the case where no one (attorneys and client) cannot afford to pay the expert witness, the expert may agree to forgo payment until the end of the case.
But this is rare, and most busy experts will prefer to look for a client with money funds available.
If the client can’t afford the witness, and the attorney will not advance funds for the witness, then that witness will not be a part of the case.
Is It Possible To Get Government Funds To Pay For Expert Witnesses?
On the criminal side, there is government money set aside to pay for witnesses, even expert witnesses.
This is generally not available in civil cases.
There may be grants or funds or agencies available that can offer assistance to folks in wrongful death cases, but these opportunities are really rare.
Do not go into a case assuming that there will be any funds donated or granted to help to pay for witnesses in a civil case.
Looking For More Information About Wrongful Death Cases?
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The Wrongful Death Article Library is intended to help make your first conversation with a lawyer, prosecutor, defense attorney, insurance adjuster, or other involved party easier.
You can find the growing Wrongful Death Article Library here.
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