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Deposition Retainer Agreements

March 2, 2012

In the past few months, I have experienced and been informed of several problems with attorneys who depose physician clients/friends in their capacity as a physician and then who refuse to pay the physicians their fee for the deposition.

Because this is a common problem, I created a deposition retainer agreement where the attorneys personally guarantee payment within seven days and agrees to pay for collection costs if payment is not remitted.

In the past, I have had friends threatened to be sued for “conspiracy” by an attorney because the attorney “was a litigator and that’s what litigators do.” I have had friends who have been told that their fee is “too high” after the deposition was provided and the request for payment was made.

In the latest case, I was contacted by a physician who was being deposed in a lawsuit against a colleague. I forwarded a copy of the deposition retainer agreement to the attorney requesting the deposition. He didn’t want to sign the agreement, but promised to pay the physician her stated fee.

The deposition went longer than expected and the attorney had already made a check out to the physician for an amount of money that did not compensate the physician for all of the time she spent testifying as required under Supreme Court Rule 204.

She waited for payment for the difference, but the payment never came. She then contacted me again to intervene.

I had to write four e-mails to the law firm that had requested her deposition. After threatening legal action, I received an e-mail that stated in pertinent part:

From my perspective, the transcript for Dr. XXXXXXX’s deposition does not indicate any times.  I recall that we started late as you and your client were conferring while counsel for Dr. XXXXXXX and I waited.  Dr. XXXXXXX also responded to a page during the deposition.  Finally, my recollection is that my portion of the deposition ended at or under one hour, and then counsel for Dr. XXXXXXXXX questioned your client for a very short period of time.  I don’t believe the deposition actually went XXXX hours, and you did not raise any issue of payment until 5 weeks after the deposition.
We do not agree that money is owed as your client received a reasonable fee for her time which is all the law requires.

The time that it took to collect the remaining fee ended up taking almost as long as the deposition itself.

If you are required to appear at a deposition, make sure that you agree to the terms ahead of time. While I usually save legal documents for use by my clients, in this case, I think that providing other doctors with a sample deposition agreement to use will benefit a lot of people. Download a copy here.

The first question is in the agreement so that the doctor knows whether or not he/she may be the target of a lawsuit. If the answer to the question is “yes”, then it may be wise to contact the medical malpractice insurer or an attorney in order to review the case and attend the deposition.

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