Expert Witness Fees
By Benjamin J. Cantor, J.D.
CONSULTANT OR WITNESS
Experts employed by attorneys are generally hired as consultants to aid in the preparation of a matter of litigation, or used as an expert witness in a court trial or a deposition. Often times a consultant will mature into an expert witness.
In either capacity, the expert should obtain a written agreement, spelling out his compensation and a clear understanding as to who is responsible for payment - the attorney or the client. Such a written agreement will serve to eliminate any misunderstanding as to the expert's compensation or to whom the expert should look for payment.
The terms of a consultant's fees should be based on - (1) rate per hour; (2) experience and expertise; (3) out-of-pocket expense (such as travel, etc.); and (4) and the nature of the task assigned (e.g., if it requires painstaking efffort on the part of the expert, this should be taken in consideration).
EXPERT WITNESS FEES:
As for an expert's fee for testifying in a trial or a deposition, the fee should be based on - (1) rate per hour including waiting time in court; (2) being on call; (3) expert's experience and expertise; (4) out-of-pocket expense (such as travel, etc.); (5) the nature of the task assigned (e.g., if it requires painstaking effort on the part of the expert, this should be taken into consideration.)
If the expert is subpoenaed - without any agreement for professional compensation - and is later qualified by the presiding judge as an expert witness, he may not be required to perform any special service without an agreement for payment for the expert's professional fees. In the event that the expert is subpoenaed and is given only the statutory fee, he will probably not be as co-operative a witness as one who voluntarily agreed to testify as an expert witness. However, often times an attorney will serve a subpoena to his own expert to indicate that the witness has appeared under court order.
CONTINGENT WITNESS FEES:
Any agreement to pay witness fees, which in any way is contingent upon the outcome of the case, is invalid and void as against public policy, and is unenforceable in every jurisdiction.
QUESTION: HOW MUCH ARE YOU BEING PAID?:
If, on cross-examination, you are asked -- "Are you being paid for your testimony?" - a suggested answer might be - "I am being paid for my time, experience, expertise and out-of-pocket expense."
In cases where the party who retains you is a new client, you may want to consider requesting a retainer.
By: Benjamin J. Cantor, J.D. Phone: 617-484-7733