December 05, 2016
In civil litigation, many lay people are unaware of the fees that the average expert witness charges to work on a specific case. Moreover, prevailing litigants often wonder whether they can recover such fees from their opponents. This article examines the range of expert witness fees for civil litigation and addresses the issue of whether expert fees are recoverable in certain cases.
Determining expert witness fees can be difficult, but some organizations have investigated the matter and attempted to help estimate those amounts by aggregating data from actual litigation. For example, in 2014, one organization conducted a survey on this matter. It found that nearly 75% of expert witnesses will expect to be paid a retainer. Id. In addition, almost half of experts “require a signed retention agreement prior to initiating work on a case.” Id. Attorneys and litigants should be aware that many expert witnesses have cancellation fee policies: for example, “53% of all expert witnesses have a cancellation policy whereby they retain all or a portion of a deposition or trial appearance fee for cancellations made within a certain specified time prior to the scheduled date.” Id. In addition to taking these factors into account when attempting to ascertain expert witness fees, litigators should bear in mind that about a third of experts have fee minimums: that is to say that with respect to matters such as depositions and trial testimony, over 30% of expert witnesses charge for a certain minimum number of hours. See id. While that number may vary, it is one way that experts can ensure that the time and energy they expend to prepare for a deposition or trial is reimbursed at a certain minimum rate.
Expert witness fees may also vary depending upon the type of case that is at issue. For example, non-medical witnesses generally charge less per hour than medical professionals. See id. That disparity widens when it comes to testifying, and both medical and non-medical experts typically charge more for testimony than for consultations. See id.
Another interesting matter for consideration is that most expert witnesses appear to have somewhat different policies regarding fees, depending upon whether they are working with plaintiffs or defendants. For example, “Expert witnesses who testify mostly for plaintiffs are significantly more likely to require an up-front retainer from retaining counsel.” Id. However, when it comes to testimony, defense experts tend to charge higher fees than expert witnesses for plaintiffs. See id.
In addition to wishing to know what experts charge, many litigants have questioned whether expert witness fees are recoverable in certain instances. The general rule is that, absent a statute stating otherwise, expert fees are not recoverable costs, and each party must pay its own fees. Many litigants have been confused by language in statutes that allows for “costs” or “attorney’s fees,” but neither of these is inclusive of the fees charged by experts. See id.
There are some statutes that do allow recovery of expert witness fees, or that give discretion to courts to make such a determination. See id. For example, the California Fair Employment and Housing Act “permits recovery of expert witness fees within a court’s discretion.” Id. Title VII of the Civil Rights Act also has such a provision. See id.
One additional factor is worth mentioning with respect to the amount of expert witness fees. State and federal statutes and rulings have held that such fees must be “reasonable.” However, reasonability is a matter that is in a trial court’s discretion and many courts are loath to disturb an award of expert” witness fees. See id, e.g. The American Bar Association (ABA) has suggested that the Federal Rules of Civil Procedure provide recourse to parties who have been charged unreasonable fees by experts. See Theresa W. Parrish, “Tips for Dealing with Exorbitant Expert Witness Fees,” ABA, Sep. 10, 2015. Moreover, the ABA has provided some examples of when an expert fee would be unreasonable to provide guidance to legal practitioners. See id.
Ultimately, the best way to predict expert witness fees may be to approach different witnesses and obtain estimates. Experts, like attorneys, are generally well-prepared with contracts and provisions that cover conceivable scenarios and help to inform litigants what to expect to pay. There are procedural rules to guard against unreasonable fees, and it is also in the power of trial courts to do their part. By investigating average fees in advance and then speaking with specific experts whom attorneys wish to retain, litigators can prevent surprises and assure that the fees charged were appropriate and reasonable. Moreover, as a group of legal analysts have expressed, counsel should not be “penny wise and pound foolish” when it comes to retaining expert witnesses. See James J. Mangraviti, Jr., et al., supra. In other words, clients will most likely be best served when their attorneys retain “the most effective expert witness they can afford, not by looking for the cheapest expert witness” available. Id.