Deposition Billing for Expert WitnessesExpert witnesses have become an indispensable part of litigation. In California, it can be confusing to determine which party is responsible for paying an expert witness’s fees when a deposition is taken. This article answers frequently asked questions about billing for expert depositions and who handles the costs.

The following FAQs are answered below with respect to deposition fees for experts for California District Court cases:

(1). If an expert is deposed, who pays for the expert witness deposition fees?

The party who requests the deposition is responsible for paying the expert’s fees. The expert witness’s fees will generally consist of an hourly rate for the time spent in the deposition, as well as any time that the expert is required to wait. According to the California Code of Civil Procedure (CCP), a party who deposes an expert  witness “shall pay the expert’s reasonable and customary hourly or daily fee for any time spent at the deposition from the time noticed in the deposition subpoena, or from the time of the arrival of the expert witness should that time be later than the time noticed in the deposition subpoena, until the time the expert witness is dismissed from the deposition, regardless of whether the expert is actually deposed by any party attending the deposition.” CCP §2034.430(b).

(2). Who pays the expert’s travel expenses?

According to the CCP, the designating party or the party who retained the expert is responsible for “any travel expenses of the expert.” CCP §2034.440.

(3). When must the expert witness’s deposition fees be paid?

The deposing party should pay the anticipated amount of fees in advance, if possible. Otherwise, the fees should be provided to the attorney who retained the expert at the end of the deposition. According to the CCP, “The party taking the deposition of an expert witness shall either accompany the service of the deposition notice with a tender of the expert’s fee based on the anticipated length of the deposition, or tender that fee at the commencement of the deposition.” CCP §2034.450.  Moreover, if an expert witness’s fees are not paid prior to the deposition, the expert and the non-deposing attorney have the option of canceling the deposition. CCP §2034.460(b). Unless the parties agree upon payment at a later date, the statute controls this matter. If the expert’s deposition takes longer than anticipated, the CCP provides that the deposing party shall pay the expert’s fees within five days of receipt of an itemized invoice given by the witness. CCP §2034.450(c).

(4). Is the fee always based on an hourly rate?

No. In certain instances, the deposition fee may be a daily rate, instead. However, as the CCP clarifies, “A daily fee shall only be charged for a full day of attendance at a deposition or where the expert was required by the deposing party to be available for a full day and the expert necessarily had to forgo all business that the expert would otherwise have conducted that day but for the request that the expert be available all day for the scheduled deposition.” CCP §2034.430(3)(e). Therefore, attorneys who wish to depose an expert should try to calculate how much time they will require in advance, to minimize the fees they will be charged. The hourly fee may be more advantageous unless a deposing party can negotiate a flat daily rate and feels that the deposition may be lengthy.

(5). Can an expert witness collect a retainer or deposit before the deposition?

No. The amount charged is to be paid as described above. However, the expert and/or deposing attorney can try to determine mutually how much time the deposition will take, and a rate can be set based upon that estimate. See CCP §2034.450.

(6). What if the expert’s fees are unreasonable?

Whether a fee charged by an expert is reasonable is a matter that the courts have discretion. If an attorney feels that an unreasonable fee has been charged, they may make a motion to set the expert’s compensation aside. See CCP  §2034.470. In the event that a court finds an expert witness’s fees to be unreasonable, the motion will be granted, and the court will set the fee amount, based upon what it determines to be reasonable. Id. However, the CCP admonishes attorneys that “The court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to set the expert witness fee, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP §2034.470(2)(g).

(7). What is a reasonable expert witness fee for a deposition?

Reasonability is something that is determined (if challenged) by the courts. However, to get a general idea of what is reasonable, some statistics may assist and guide legal practitioners. According to one study, the average amount charged by an expert for deposition time in the U.S. is $459/hour.  However, experts in medical specialties can have higher standard hourly rates.

(8). Can treating physicians charge a fee for a deposition?

It depends, but in general, no. If the deposition relates purely to the treatment given, the answer is no. See CCP § 2034.430(2). Unless the deposition is court-ordered, the CCP specifically bars expert witness fees (or even so-called “ordinary witness fees) for treating physicians.  See Baker-Hoey v. Lockheed Martin Corp., 111 Cal. App. 4th 592 (CA. Ct. of Appeal—4th Dist., Div. 2, 2003) (citing CCP §1033.5(b)(1)).

However, according to a California appellate court, while a treating physician who is deposed “solely as a percipient witness” is not entitled to charge a fee, they are permitted to charge reasonable expenses for the time spent in the deposition. See Norma Platt, California Basic Practice Handbook: 2015 Update, CEB, Nov. 15, 2015 (citing Baker-Hoey v. Lockheed Martin Corp., supra, at 600). The California Supreme Court has attempted to clarify this matter by stating that “A treating physician is a percipient expert, but that does not mean that his [or her] testimony is limited only to personal observations. Rather, like any other expert, he [or she] may provide both fact and opinion testimony.   As the legislative history clarifies, what distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he [or she] became familiar with the plaintiff’s injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion.” Schreiber v. Estate of Kiser, 22 Cal. 4th 31, 33 (CA. 1999).

In sum, a treating physician cannot increase the amount charged by calling their expenses “ordinary witness fees.” As one court put it, “[Attorneys and their experts] cannot…successfully transmute the phrase ‘ordinary witness fees’ into a higher category entitled ‘ordinary witness fees of treating physicians.’ Treating physicians are experts and recovery of their fees as costs are accordingly governed by section 1033.5’s provisions [barring] expert witness fees [except in court-appointed cases], not the provisions applicable to ordinary witnesses.” See Baker-Hoey, supra.

(9). Who pays for the preparation time of the deposition?

The party who designates the expert incurs this charge, per CCP, §2034.440.

(10). Who pays if the non-deposing attorney is late to the deposition?

In this instance, the CCP does not place the burden on the deposing party. Instead, “If any counsel representing the expert or a nonnoticing party is late to the deposition, the expert’s reasonable and customary hourly or daily fee for the time period determined from the time noticed in the deposition subpoena until the counsel’s late arrival, shall be paid by that tardy counsel.” CCP § 2034.430(3)(c).

(11). What if the expert is late—who pays?

This is a bit of a challenging question. The deposing party is responsible for the expert’s customary and reasonable fees, according to the CCP. See CCP §2034.410, et. seq. However, if the expert is late, the deposing attorney can make a motion under CCP §2034.430, challenging the amount or reasonableness of the fee charged, and that attorney can argue that they should not be held responsible for time spent waiting for the expert if the expert was tardy and the additional time spent waiting for the expert was incurred by the deposing party. Generally, the deposing attorney will only be billed for the expert’s actual time spent in the deposition, as well as travel expenses and preparation time, so if the tardiness does not fall into one of the aforementioned categories, the matter can be appealed to opposing counsel or to a court.

(12). Who is responsible for payment when more than one law firm or party is deposing an expert witness?

This can be determined by stipulation of the parties. One firm can pay, or the firms can choose to split the fees. According to the CCP, both deposing parties are technically financially responsible, but unless an unresolvable issue arises (which can then be appealed to the courts, via a CCP §2034.430 motion), the deposing parties can determine who pays on their own—so long as one of both deposing parties pays the expert’s fees. See, e.g., CCP §410, et. seq.

Conclusion:

Determining who is responsible for expert witness fees can be a bit of a challenge. However, the CCP offers much guidance on this matter, and the FAQs above can assist legal practitioners in understanding the rules in California and apportioning the financial responsibility accordingly.

 

By: Kat S. Hatziavramidis, Attorney-at-Law

 

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