Posted by William Lightner, Esq. on Wednesday, March 23, 2011
Recovering Compensation when your Name’s Used without Permission
“I’ve been robbed!” shrieked our friend upon hearing an attorney had employed her reputation as a forensic expert to settle a case – without paying for the privilege. Feeling violated, she was faced with a dilemma. Should she invest more time and money chasing the lost fee, risking a backlash from other attorneys to boot? Could she actually recover any money if she did win a judgment? Or would it be better to lick her wounds and focus on preventing future thefts of her name. If she capitulated, would she earn a reputation for not valuing her name? Her rage melted into bewilderment.
This article assures expert witnesses that you do have legal rights in this situation, tells you what we do to avoid the problem, and recommends cost-effective tactics to utilize if you are wronged.
Preventing Representation without Compensation
We suggest experts adopt an express policy that their names may not be used without written consent and payment, and then back that policy with consistent customs and practices. For instance, Lightner Property Group staff names may not be invoked in forensic matters without consent, evidenced by a written engagement letter, the completion of a conflicts check, and payment of our minimum engagement fee. The same goes for OPINEXPERTS, our full-service talent agency for forensic experts in the real estate industry.
Adhering to the following customs and practices can help build an expert’s legal foundation for damages and the value of their name in Court.
Publish this policy in every place it is relevant, most importantly in letters to potential clients and on your web site.
Require the payment of a Minimum Fee.
Enforce your rights if appropriate, to lend credibility to your policy.
An Expert's Legal Rights When You’ve been Wronged
Common law provides a remedy for those whose property has been used without permission: What criminal law calls a “theft” is known in this context as “appropriation.” Whether the act is done by one who had no authority to use your name, or by one who has authority to use your name but uses it in an unauthorized way, the civil remedy is usually money damages equal to the harm inflicted.
The legal issue here is whether one’s reputation or name will be protected. In the context of an expert’s name and reputation, the answer is likely yes. While no case addresses improper appropriation of an expert’s name and reputation by an attorney, analogous cases prohibit the improper appropriation of one’s name. See, Williams v. Weisser (1969) 273 Cal.App.2d 726; Eastwood v. Superior Court (1983) 149 Cal.App.3d 409.
Seeking Remedies When Your Name’s been Employed without Payment
The first thing you should do is ask the offending lawyer for money – in writing. Yes it’s obvious but an early resolution is beneficial and you may be viewed more favorably if you can show you’ve made a reasonable attempt to collect on your own.
State and Local Bar Associations
While California’s State or local Bar Associations run a fee arbitration system they do not help resolve disputes between lawyers and their litigation consultants. As a consequence, exhausting your administrative remedies will not be required prior to filing a legal action. Whatever you do, do not threaten administrative action from licensing or regulatory agencies in exchange for payment. This could be viewed as a form of extortion.
Many local bar associations now provide advertising services for expert witnesses. Most local bar associations also offer effective fee dispute programs for their attorney members. As these associations have reason to keep advertising experts satisfied, local bar associations might be persuaded to expand their fee dispute mediation programs to serve experts who advertise with them. Were these associations to cooperate their forum would provide experts with a simple, inexpensive and lower risk method of adjudicating their fee complaints.
Small Claims Court
After you’ve slept on it, after you’ve convinced yourself you really want to face the potential consequences of suing a lawyer, your cost effective forum is Small Claims Court.
You will need to file a form complaint in the county where the wrong occurred. Blank Summons and Complaint forms can be downloaded from the judicial web site of the relevant jurisdiction (e.g., http://www.sfsuperiorcourt.org/index.aspx?page=26). Familiarize yourself with the local rules for Small Claims court actions in that area. Different jurisdictions may follow different protocols.
After you file your complaint,
Job One will be convincing the Court that your name and reputation as an expert have real economic value, thus establishing not only improper appropriation, but that you were damaged as a result. You will need to prove not just your qualifications and reputation, but that you are routinely paid for expressing your opinion.
To establish a claim, you’ll need to show that (1) the attorney used your name without your consent, (2) the attorney obtained a commercial or other advantage as a result, and (3) you suffered injury or damage. See, Eastwood at p. 417.
The Court will need evidence the attorney actually used your name without compensating you. Hearsay and speculation won’t cut it. Present something in writing, such as the expert witness disclosure filed by the attorney, which is required to be under oath and is also required to state that the “expert has agreed to testify at trial.” California Code of Civ. Proc. Section 2034.260(c)(3).
To win an award greater than an hour’s worth of time, you’ll need to present convincing evidence you command and collect a minimum fee. Examples of other engagements (during the relevant timeframe) where you have been paid a minimum fee should do.
Proving damages may be eased by invoking Civil Code Section 3344. While linking this statute to your claim could be challenging, as it requires a direct connection between the improper appropriation and a commercial purpose (such as the use of your name in advertising), convincing the judge that the code applies sets a minimum value for your case. The code section provides a minimum, mandatory award of $750.
Anticipate defenses to your claim. You cannot expect to prevail if you’ve waived your rights or sat on them so long as to offend the Court’s sensibilities.
Even if you win, the attorney can appeal, leading to a new hearing in Superior Court. Not only will you have to prove your case again, you may need to hire an attorney to help you.
After you prevail, you need to collect the money. As Pyrrhic victories are terribly unsatisfying and potentially counterproductive, you’d best learn how to collect on money judgments. (See: http://www.sfsuperiorcourt.org/Modules/ShowDocument.aspx?documentid=1555)
To obtain sample language for a complaint in Small Claims Court, contact: Bill.Lightner@opinexperts.com
Author William Lightner, Esq. is cofounder with Merrie Turner Lightner of Lightner Property Group, an owner and manager of San Francisco apartment buildings, and OPINEXPERTS, a full-service talent agency for top-flight forensic consultants with expertise in various aspects of real estate. A licensed attorney and real estate broker, Bill graduated from Hastings College of Law and University of San Francisco. He can be reached Bill.Lightner@opinexperts.com or at 415.267.2900 x114.
Contributing Author Todd A. Angstadt, Esq. is a lawyer with Phillps, Spallas & Angstadt , specializing in landlord-tenant, premises and product liability. Todd graduated from the University of San Francisco School of Law and holds dual degrees from Wichita State University. He can be reached at firstname.lastname@example.org or 415-278-9400 x104.
Mr. Lightner is an attorney and real estate entrepreneur with wide-ranging experience. He consults on fair business practices involving the treatment of real estate investors by their investment sponsors. He manages Opine, recruits experts and tracks down experts in the most arcane aspects of California real estate.