No matter whether your client is an individual or an international corporation you are going to hear the question why does the expert witness cost so much? In contingency fee cases, this question arises because it is the most significant expenditure in a situation where the lawyers are not being paid unless there is a financial recovery. In hourly cases, the question may arise because the client has little to no direct contact with the expert witness, viewing them from a distance, through the bill.
The essential fee paid to the expert witness is for his time. If we consider the examples of orthopedic surgeons and cardiologists earning more than $500,000/year in their medical practices, we can quickly do the math on the hourly rate. Simply put, the busier and the more successful our prospective expert witness, the higher the expert witness fee he can command. It’s really no different than the lawyer’s hourly rate considerations.
Let’s break down the expert witness charges for different tasks, keeping in mind your client who is paying his bill.
First, the prospective expert witness may charge an initial consultation fee to speak with you about the case. Ask whether the fee is a flat fee and what the charge involves, e.g., just discussion or also some record review. Then, ask your client for a budget for the interview process. Perhaps you are fortunate to find the perfect expert witness in one try, but perhaps you could benefit from interviewing several potential witnesses. Another option is to use an expert witness referral company, which offers free referrals and initial consultation with expert witnesses at no cost.
Second, learn the rate from the expert witness for a preliminary record review. This may be a set number of hours or a set number of pages, but one can generally request some preliminary insights from the expert witness even before fully engaging the expert witness as your case or trial witness. Again, present to your client the benefits of early impressions as a means to vet the case. And each time you speak with an expert witness, go back to your client for a discussion of all that you learned, whether positive or negative to the case.
Third, there is the expert witness fee for the full file review. This may involve some timing considerations between the lawyer, expert witness, and client. It may be that the preliminary discussion can suffice until further into discovery or it may be that the preliminary review contained sufficient questions that a full file review is necessary at a very early stage. Once again, the lawyer may have to deal with the reality of the client’s budget, and it may be worth discussing that budget with the expert witness for thoughts on strategic use and timing of the funds.
In between these three early charges and trial is where it gets more difficult for the lawyer and his client, particularly as concerns budgeting for expert witness fees.
Where one can easily get stuck with expert witness fees not entirely within the lawyer’s own control are the on-site investigations, updates of materials revealed during discovery, and deposition. These, and other variables, also involve opposing counsel. In a positive, working relationship, both sides of the case face the same efficiency pressures from their clients, but a solid explanation to clients on the need for the expert witness involvement at any such stage along with a range of potential costs keeps your client involved in the process and more willing to continue to fund these necessary litigation activities.
Finally, there are the expert witness fees for trial testimony. The fees may be required in advance and may include a cancellation deadline. Any such details discussed with an expert witness should be reduced to a writing and carefully reviewed – in person, if possible – with the client. The trial fees of the expert witness can quickly bring both sides to the negotiation table, and can even factor into settlement offers that are based upon acceptance relative to fixed trial costs. Setting a deadline with the client for the deposit of required expert witness fees in advance of the deadline of such fees being paid to the expert witness can also help the trial attorney to manage expectations.
As with any expenditures associated with a case, it is prudent for the lawyer to enter into a written agreement with an expert witness at the start of the engagement, detailing fees, scope of work covered by fees, expenses, and periodic deposits, along with any late charges. If not already required by the state, in cases involving expert witnesses or other significant expenses, the lawyer is well advised to keep the client up-to-date with monthly invoices and as many pre-approvals as are called for by the attorney-client retainer agreement.
By: Paloma A. Capanna, Attorney at Law