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Gianna Elms, LCSW Forensic Expert Retainer and Fees

PURPOSE: This agreement memorializes the terms of you retaining me as a forensic expert witness. As my Curriculum Vitae reveals, I have extensive experience in several specialty areas and as an expert where I have consulted, testified, and even written policies and legislation on matters that are now national models. Additionally, I am recognized and have even been officially endorsed as of November 11, 2022, by Robert D. Enright, Ph.D., and the International Forgiveness Institute as “the best Forgiveness Therapy clinician in the country” for my work in treating and healing trauma, including complex trauma, as well as “the most qualified to train other clinicians” based on my experience.

I set forth the terms of my engagement in writing in order to avoid misunderstandings. I ask that you indicate your agreement by executing your copy of this letter and returning it to me, along with your check for the initial retainer fee.

SCOPE OF SERVICES: Scope of Evaluation. A forensic evaluation consists of a variety of techniques for determining and then documenting an individuals’ status. These techniques include clinical interviews, mental status examinations, psycho-social diagnostic testing, review of relevant records, interviews with collateral sources, research, conferences with attorneys or others, and preparation of written report or a formal declaration, if requested. Once the evaluation is complete, I may be asked to provide testimony in a deposition or a Court.

Access to Records. Since I do not have access to the Court system except through counsel who retains me, please note that I depend on you to obtain various records and to arrange for the mental examination of the plaintiff to occur under clinically acceptable conditions. I will furnish you separately with a list of records that I will need for you to obtain from the plaintiff or from third parties via subpoena. Please, provide me with copies of all non-privileged documents relevant to the case. This is a periodic and ongoing process including filings and other expert reports. My effectiveness as an expert witness will depend to a great degree on my having access to these records.

Clinical Examination. Similarly, if a mental, vocational, or psycho-social examination is determined to be necessary for me to complete my evaluation, I will need your help in arranging for the examination of the plaintiff. As you know, if the plaintiff does not agree to such an examination, a motion to the Court will be necessary and such a motion must be brought far enough in advance of the discovery cutoff to permit an examination to occur within the discovery period. Also, sometimes opposing counsel or the Court will attempt to place restrictions or conditions on examinations, such as time limits, limits on topics of inquiry, or requiring the presence of outsiders. Please do not agree to any such restrictions or conditions, or fail to oppose them in Court, without consulting with me, as such restrictions or conditions can significantly impair my effectiveness as an examiner as well as the performance of the examinee.

LOCATION OF SERVICES: Except where special arrangements have been made, all forensic expert services will be provided within Flagstaff, Arizona, most of which may occur via the use of technology from my office. I respectfully ask that all depositions also be scheduled in that same fashion at a time mutually convenient for both parties to save time and fees that I must charge.

RETAINER: I require an initial retainer in the amount of $7,500. One third of this amount ($2,500) is non-refundable but may be applied toward record review, consultation, clinical interview, or late cancellation of an evaluation. Any portion of the retainer exceeding $2,500 that is not used during my services will be refunded. A separate retainer may be required for depositions and court testimony, preparation, and related expenses. Depositions and court testimony related retainers are generally non-refundable; however, some related expenses may be refundable, if given sufficient notice.

FEE AGREEMENT: Forensic evaluation. All forensic services, except for testimony, are billed at a rate of $250 per hour due to most of my time spent on forensic work being performed before 6:00am (Arizona time) or after 6:00pm (Arizona time) or in the alternative is highly disruptive to my private clinical practice. Charges are billed in 5-minute increments with rounding up to the nearest $5. There is a minimum charge of $65.

Deposition and Courtroom Testimony. For depositions or courtroom testimony, I bill $3,000 per day with a half-day minimum of $1,500. The half-day rate shall be charged for any deposition or courtroom testimony running from zero to four hours. The full day rate shall be charged for any deposition or courtroom testimony running from four to eight hours. An additional $1,000 shall be charged for any video-recorded deposition or courtroom testimony. Travel time and travel expenses are extra.

Reasonable time to prepare for depositions or courtroom testimony varies based on the complexity of the case, the number of defendants, in addition to counsel present to question me, how long it has been since I have worked on the case. and so on. Therefore, my preparation time may range from one to three hours [or more], per the estimated time for the deposition. Preparation time is billed consistent with the terms of all forensic services, except for testimony.

If you or the opposing counsel are not clear about the length of the deposition or courtroom testimony at the time of scheduling, I will error on the side of caution, and estimate my reasonable time to prepare in accordance with a full-day and what I believe I need to do to prepare for the deposition or courtroom testimony based upon the basic facts that I’ve already stated. Generally, I do not bill for all the time that I spend preparing for depositions or courtroom testimony. I do not believe that you should have to pay for my education, as an example.

Deposition or Courtroom Transcript. Prior to agreeing to sign and notarize my deposition or courtroom testimony transcript, I will require advanced payment from the party who is responsible for payment. I also consider review of my deposition or previous court testimony, a billable ‘document review’, regardless of form, and necessary to prepare for other depositions or courtroom testimony related to this matter. This is not a 1:1 correspondence, i.e., length of deposition or courtroom testimony does not equal the same amount of time to review a transcript or prepare for other depositions or courtroom testimony. It may require one or three hours [or more] the first time and it varies the next time based on several factors. Video-recorded depositions, for example, require more time to review.  Review of deposition or courtroom testimony transcript, in whatever form, are billed consistent with the terms of all forensic services, except for testimony.

If you have neglected to provide me with documents, ongoing, and in a timely fashion, that I determine are relevant to my report(s), deposition, or courtroom testimony, I may need more time to prepare, and I will bill you for that time. It is your responsibility to seek relief under the law if the opposing counsel has restricted your access to records. My effectiveness as an expert witness relies upon your cooperation related to access to records.

Please do not rely solely upon your judgment as to what is relevant to my preparation because every expert prepares his or her report(s) and testimony differently. I do not believe it is my job to get inside of your head or the opposing counsel’s head and to win the case for you, nor can I be paid to give an opinion that is based solely upon your narrative or your goal for the case. I reserve the right to change my opinion, at any time if new information becomes available to me.

Any payment received from opposing counsel shall be credited towards either my minimum half-day rate or my full day rate, depending on the length of the deposition or courtroom testimony. You remain responsible to pay the difference between opposing party’s payment and either the half-day rate of $1,500, where the deposition or courtroom testimony runs less than four hours, or the full-day rate of $3,000, where the deposition or courtroom testimony exceeds four hours and lasts up to eight hours, as well as for the $1,000 charge for any planned video-recorded deposition or courtroom testimony prior to it starting and any costs that I’ve incurred with a contractor by not having sufficient notice to cancel a service.

Testimony exceeding eight hours. Any deposition or courtroom testimony that exceeds eight hours will be billed by the hour at a rate of $750 per hour and any costs that I’ve incurred, which includes any unused time that I am still available for testimony or have been earlier in the day. This is not billable in 5-minute increments. In some cases, some or all the advance costs are shifted to the opposing counsel. Same day costs are either your responsibility or the opposing counsel’s responsibility the same day or within 5 (five) calendar days, if the most protective law permits or requires me to continue testifying and to allow for delayed payments for extended same-day services. Because I do not have a relationship with the opposing counsel, please do not put me in a position where I must act as a bill collector with the opposing party because of the potential for bias.

Travel Time. All travel time to and from Court proceedings, depositions, clinical evaluations, or consultations are billed at $250 per hour and travel expenses. Mileage is calculated by the highest amount allowable by the IRS. Where I am required to travel over 200 miles for any Court proceedings, deposition, evaluation/consultation, whether it may be in state or out of state, you shall cover the costs of any airfare, accommodations and make flight and hotel arrangements in advance.

Out of Pocket Expenses: I also bill for out-of-pocket expenses, such as copying, conference room rental, telephone calls, overnight delivery, courier services, costs of transcribing and recording, and other administrative tasks. Copies will be charged at $0.10 per page. All administrative tasks will be charged at the out-of-pocket cost plus a 10% administrative surcharge.

Communications. All communications whether over the phone, email, text, or in person are considered billable time and are charged at a rate of $250 per hour in 5-minute increments with rounding up to the nearest $5. There is a minimum charge of $65. I reserve the right not to ‘nickel and dime’ you for a brief communication, however if there have been multiples within the same week or month…I will bill you.

CANCELLATION POLICY: Because my practice consists primarily of providing outpatient psychotherapy services, please provide as much time as possible in advance to schedule appointments for providing forensic expert services, including depositions and/or courtroom testimony.

Since a half day is set aside for a clinical evaluation, late cancellations are highly disruptive to my schedule and to my other clients. If an appointment for a clinical evaluation is cancelled within 72 hours of the scheduled appointment time for any reason, including settlement, there is a $1,000 cancellation fee, in addition to any other costs that I have incurred related to travel or other service that I cannot cancel with sufficient notice.

Because of the greater time commitment involved in being available for deposition or courtroom testimony, the half-day charge of $1,500 will be assessed if such service is cancelled or continued with less than 21 days’ notice, in addition to the billable preparation time that I have accumulated. There are no refunds for cancellations received within 72 hours of the scheduled deposition or courtroom testimony.

My cancellation policy must be disclosed in your expert designation, so the opposing party has notice. This policy is in effect regardless of the form of notice that I received from you and/or the opposing counsel.

PAYMENT POLICY: Billing Frequency. After I am retained, I will send you monthly invoices, which I will expect to be paid within 30 days of receipt, unless circumstances require immediate payment for me to continue working on the case. In the event an invoice is not paid within 30 days, I reserve the right to add an interest charge of 10% per year, compounded monthly, to all overdue amounts. You will be responsible for all charges incurred. My relationship is with you, and/or your law firm, and not with the client you represent or the insurance company that has retained you. I also have no relationship with the opposing counsel, or the opposing party or the insurance company that has retained him or her.

Advanced Payment. Because of the potential for cross examination on the grounds of bias, I require that all of my invoices be paid in full prior to my giving testimony at any deposition, hearing, trial, or arbitration. Additionally, if any limits have been placed on this agreement, which we have not previously discussed and agreed to include in the contract language that allows for me to continue working at your request, I will require a new retainer and fee agreement for services each time, and it may include new terms if you have not received billable services from me in more than a month on the same case. In the event of nonpayment of my invoices or no valid retainer and fee agreement to which I can invoice, you agree that I may withdraw my services regardless of whether or not I have been formally designated as an expert.

Where my deposition or courtroom testimony has been scheduled, payment for such testimony must be paid within 5 (five) calendar days of receipt of the invoice or within 72 hours in advance of the testimony, whichever is sooner, and is generally non-refundable. You are required to estimate the amount of time required to take my courtroom testimony and calculate my fee based on that estimate. If the testimony exceeds the estimated time, you are required to pay me for the additional time as soon as possible, but not more than 5 (five) calendar days after the testimony is given if the law permits. Some states require immediate payment before the testimony may be given or proceed.

Methods of Payment. If you elect to pay by check, please send it via a large envelope overnight via UPS, 2-Day FedEx Express, or USPS Priority Mail and send me a tracking number. Payment is not considered “paid” or “received” until the check clears my bank account, which often takes approximately 7-10 calendar days from the date that I receive it. In the event that the check does not clear my bank account and is returned due to cancellation or non-sufficient funds (NSF), you will be responsible for any charges that I incur as a result of the check not being honored by your bank. Alternatively, you may elect to pay by ACH transfer or credit card to ensure that payment is received more quickly. Due to the large amounts that are typically paid for retainers and the associated fees that Square charges me for ACH transfers and credit cards, you will be charged an additional service-charge, which is non-refundable. The service charge is non-refundable due to Square’s policy not to refund this fee to me.

ADDITIONAL DUTIES OF LAW FIRM:  In addition to the other duties outlined in detail throughout this agreement, the duties of the law firm, attorneys, and other employees include, but are not limited to:

  1. Abiding by the applicable rules of professional conduct for attorneys and/or others.
  2. Notifying me of all parties and attorneys in the case, so that I can check for conflicts of interest.
  3. When circumstances reasonably allow, providing me with prompt notice of any Dauber motions, Frye motions, motions in limine, or other pre-trial motions made by other parties or persons to restrict, exclude or in any way limit my testimony or my participation in the underlying legal matter.
  4. Obtaining my advance approval (for accuracy) of the relevant portion of any and all answers to interrogatories, motions, expert designations, or other documents which summarize my qualifications, methodology, opinion(s), and/or anticipated testimony.
  5. Being available as reasonably requested to meet with me prior to anticipated testimony.
  6. Promptly notifying me of when and where I may be requested to appear to testify.
  7. Promptly notify me of any issues related to any legal restriction that my involvement or testimony in the case could reasonably be deemed to be practicing my profession without a license to which you become aware of.
  8. Promptly notifying me of the settlement or final adjudication of the underlying legal matter.

ADDITIONAL DUTIES OF EXPERT: In addition to the other duties outlined in detail throughout this agreement, my duties as an expert include:

  1. To truthfully represent my credentials.
  2. To formulate with honesty and due care and truthfully express my opinion(s) in those areas (and only those areas) where I feel qualified to render an opinion and where your law firm has requested an opinion. You agree that my opinion(s) as an expert are not preordained, might be contrary to your position, and are subject to modification as a result of new or additional information.
  3. To cease work or the underlying matter and promptly inform your law firm, whenever I have accrued unpaid fees and expenses totaling more than the amount that I have available to bill from my retainer and/or the invoice that has been sent to your law firm for pre-payment of fees, which we have mutually agreed upon, in advance. In this event, I will not perform further work on the underlying legal matter until payment is received for the invoiced amount and approval is given by your law firm.
  4. I am under no duty to provide and express opinions if I am given time deadlines or cost-based or other restrictions by your law firm that would not reasonably allow me to, in good faith, formulate and express my opinion with reasonable care.
  5. Subject to paragraph 4, ADDITIONAL DUTIES OF EXPERT, to prepare a written report if your law firm requests one.
  6. Subject to paragraph 4, ADDITIONAL DUTIES OF EXPERT, and to circumstances beyond my control, to meet all reasonable deadlines requested by your law firm.
  7. To retain and preserve (during this engagement) all evidence provided to me from the underlying legal matter unless your law firm gives written permission for destruction of testing or the like.
  8. To be available on reasonable notice to testify.
  9. To be available on reasonable notice to consult with your law firm. My cellular phone number is: 1-928-890-4642.
  10. To work exclusively with your law firm in the underlying legal matter unless the parties mutually agree in writing otherwise.
  11. Upon receipt from your law firm of the list of attorneys and parties specified in paragraph b, ADDITIONAL DUTIES OF LAW FIRM, to withing 30 days check for conflicts of interest with due care and within the same 30-day period to notify law firm of any conflicts of interest discovered that preclude my further involvement in the underlying legal matter.

RIGHT TO WITHDRAWAL FROM CASE: As an expert, I shall have the right to withdraw, without any liability, from the case if you, any other person, or your law firm violates any of the duties specified throughout this agreement or if:

  1. I discover a conflict of interest which precludes my further involvement in the underlying legal matter.
  2. I discover that because of legal restrictions, my involvement or testimony in the case could reasonably be deemed to be practicing my profession without a license.

WITHDRAWAL: Notice of withdrawal shall be provided from me to you and/or the most recent attorney who is working on the case at your law firm. In the event of withdrawal, we agree that the law firm remains fully liable for all accrued but unpaid fees, expenses, and interest.

TERMINATION: This contract shall be terminated upon written notice to me from you or a representative of your law firm at any time, by my withdrawal pursuant to the explanation of “Right to Withdrawal from Case”, at such time as your law firm is no longer involved in the underlying legal matter, or upon the settlement or final adjudication of the underlying legal matter. In the event of termination, your law firm is still responsible for all sums owed to me.

DOCUMENT/EVIDENCE RETENTION: I shall have no duty to retain any documents, reports, evidence, transcripts, exhibits, e-mails, electronic files, or other materials upon the underlying legal matter for more than 30 days following the termination of this agreement. I shall retain (at your law firm’s expense) all records and evidence in the underlying legal matter to law firm if a written request to do so is received by me within the 30 days following the termination of this agreement.

VENUE AND ATTORNEY’S FEES: It is also agreed that in the event I must initiate legal action to recover unpaid fees and expenses, the venue for such action shall be the Courts of Coconino County, Arizona and that the prevailing party in such litigation shall also recover costs of litigation, reasonable attorney’s fees, expert fees, and other costs.

MISCELLANEOUS: It is agreed that each party may not assign its interest, rights, or obligations under this contract to any other person or entity without the other party’s prior approval. For example, I am under no duty to work for successor law firm on the underlying legal matter. The performance of this contract by either party is subject to acts of God, death, disability, government authority, disaster, or other emergencies, any of which make it illegal or impossible to carry out the agreement.

It is provided that this contract may be terminated for one or more of such reasons by written notice from one party to the other without liability. If either party agrees to waive its right to enforce any term of this contract, it does not waive its right to enforce any other terms of this contract. This written contract represents the entire understanding between me and your law firm. The individual signing this contract on behalf of the law firm represents and warrants that he or she is duly authorized to bind the law firm.

ACKNOWLEDGMENT AND SIGNATURE: If these terms are acceptable to you, please sign where indicated below on the enclosed copy of this letter and return it to me with the initial retainer of $7,500, payable to “Gianna Elms, LCSW”.

By signing below, you agree that these terms are acceptable to you, and you agree to be bound by these terms. Thank you for your confidence. I look forward to working with you on this matter.

SIGNATURE AREA INTENTIONALLY LEFT BLANK – YOU MUST REQUEST A FORMAL AGREEMENT

[Revised November 2023]

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