[QUOTE=NinetyWt]
I’ve been doing a bit of expert witness work lately. I’ve done work for attorneys since I started my biz seven years ago, but only now have any cases gone to trial.
I charge a different hourly rate for testimony, either sworn depositions or actual trial testimony. That’s SOP for professional engineers here, and probably country-wide (US).
The expert is paid to testify at trial by whichever side hired him/her as an expert.
Here’s my puzzle. In on case, I was hired by the plaintiff in a real estate case to assess the drainage conditions on his property and prepare a letter report, which I did. Now his case is going to trial. He called me a few days ago to let me know that I was going to be recieving a subpoena to testify on his behalf. I got the impression that he was calling me as a regular witness, not an expert.
I’m irritated by this. I think that if he needs me to testify he should step up and offer to reimburse me for my time, at least at my regular ‘engineering’ rate if not the ‘expert’ rate. Actually, I can’t afford to sit around the courthouse burning up precious hours waiting for my ‘turn’ while paying clients are put on hold.
What would you do in this situation?
Thanks in advance.
[/QUOTE]
In my arena, (medical malpractice) the commonest fee schedule here in Illinois is hourly for work outside the courthouse and per half-day for going to court. It becomes someone else’s problem to use your court time efficiently.
I am a physician and not an attorney, so get some legal advice, but in general you can be subpoenaed by anyone as long as the judge signs off on it, so what you need to do asap is agree in advance what fee you will be paid. You should do this, in writing, with the party who wants you there.
Technically speaking you must appear if subpoenaed and you must testify. As a practical matter, remember two things: the party who wants you there does not want a hostile witness who points out things not contained in the original letter, and should you develop a terrible headache the day your poorly compensated appearance has been subpoenaed, you ain’t going to jail. The trick in dealing with sneaky lawyers is to be as sneaky as they are. You don’t say, for instance, “I think I’m gonna have a headache that day, and you aren’t going to be happy with what I have to say.” You say, instead, “I am just so worried with this subpoena thing that if I get one of my headaches, I’m not going to be able to make it.” You say, “If they ask me about any opinions not in the letter, how should I handle the things that support the other side of the fence?” In other words, make it clear that an expert paid his wages is a better witness than one being cheated by a party hoping to make money off his expertise. If they pimp you and play hardball, send a written letter (without asking them first) that creates the “appropriate” additions to the original one and perhaps muddies the water around how good a case they have. They will no longer need you as a witness.
The moral issue is very simple: You need to be an honest expert. You also deserve to be paid as an expert, especially if that’s what roped you into this in the first place. But if someone is trying to screw you over, you are allowed to make it clear that is not in their best interest. Build a business with honest attorneys (and there are many) who need expert witnesses that can sometimes help their clients and sometimes not. In the long run you will be paid well, sleep easily and it will be easy to go to court because you just say what’s true.
If this client or his attorney is pulling a fast one, get the specific fee agreed to in writing. Here’s my favorite attorney pimping, which reinforced my opinion of how clever the bad ones can be. Happened to me 20 years ago when I was new to the biz. An attorney wanted me to testify in court that one of my patients was at fault in an accident because of the meds he was on. He inquired of my fee for testifying, and I told him what it was. I gave the deposition and sent a bill. The plaintiff attorney was not happy with what I said. I did not support his client’s position. (Among other things all four of the “injured” went to the ED for their neck xrays 5 days following the accident and after calling their attorney…) Anyway I will never forget the attorney’s response to my bill: “Dr. ____, although I may have inquired as to what you charge, at no time did I agree to pay it.”
You gotta love those guys.
