This is the fourth and final post in my blog series on challenges with expert witnesses faced by trial lawyers. I saved the best for last. What happens when the opposing party has more money to spend on experts?
A series of recent headlines implied the notion that spending more on expert witness fees equates to better testimonies in front of the jury. In fact, a government agency explained the recent series of unfavorable jury decisions as losses because they were outspent by the defendants on expert testimony. We encounter the assumption that the side with more to spend on expert witnesses will make a bigger impact on the jurors.
“Outspent” is a big word. In some cases, one expert witness bills more per hour than the other. In other cases, the cost of trial testimony of one expert can exceed the other. The revelation of the hourly billing rate or the invoiced paid to the expert witness can result in pretty candid facial expressions from the jurors.
I respectfully disagree that the cost of expert witness testimony is a race to the top. First, justice is blind. While jury members may react to rates of pay, including for various other witnesses and parties, once they begin deliberations, juries seriously contemplate the evidence. They know that both sides pay expert witnesses as part of the business of trials.
Second, a high hourly rate or a high bill does not automatically equate to superior testimony. It is no different for expert witnesses than it is for lawyers. Expert witness hourly rates might be a reflection of his or her industry reputation and years of experience. Rates can also be affected by the supply and demand of experts in a particular area of expertise. However, regardless of the hourly rates of an expert, expert witnesses have to work with the facts of the case to come up with their opinions and testimony. A good testimony has to be scientifically sound and be able to withstand the Daubert standard.
Ultimately, the question of the compensation paid to the expert witness rests on the comfort level with which both the lawyer and the expert witness can talk about these issues during trial testimony. When both the expert witness and the lawyer are comfortable with both the rate of compensation and the services provided, it transmits to the jury and to the bench.
Any expert witness presentation will be the substance of the testimony. At the same time, don’t lose track of opportunities to make a confident presentation with the expert witness on topics like compensation. It might allow juries to make decisions that the lesser-paid expert witness should determine the outcome based on his or her fact-based testimony.
By: Paloma A. Capanna, Attorney at Law, Policy Analyst