Attorneys & Experts: Should I be miffed at this?

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.

Call him back and clarify. Now.

What he said.

If you’re being called as a “regular” witness, how is that different from, say, me being called as a “regular” witness? I wouldn’t get big bucks for testifying.

I’m not sure if it is different in your jurisdiction, but just because you will be appearing subject to subpoena shouldn’t change the fact that you are an expert witness and entitled to compensation for your time under your agreement with the litigatiing party.

In my experience, it is not uncommon to subponea all witnesses a party wants to testify as a matter of course, even if they expect the witness to show up voluntarily. If for some reason the witness does not appear, if you haven’t issued a suboena, the judge will probably respond to a request for a continuance or other consideration with “it’s your witness, you should have subpoaned him [or her].” On the other hand, if the witness is disobeying the judicial directive of a subpoena in the otherwise identical situation, the judge might be more willing to move things around.

The Subpoena is most like rote procedure for his office (not needed for your own witnesses unless you don’t think they’ll show up). You should do as suggested and call to clarify your testimony as lay or expert. You most likely will not sit around waiting your turn, they usually schedule time frames for experts, so you should have a time frame prior to the actual trial.

If your fee schedule says you charge X for ‘trial testimony’ then be sure to remind him. You could send a bill prior to your scheduled trial requesting prepayment. While I hate that practice of prepayment requests, it’s becoming more common place b/c of attorneys like yours.

If your fee schedule says ‘expert trial testimony’, revise it and remove expert.

Exactly. I’m on the fence about that. But at the same time, it will cost me a lot due to wasted billable hours. I’m a sole proprietor; if I don’t work I don’t eat.

This is the routine for experts, yes. But I’ve seen other lay witness having to languish around the courthouse for hours waiting their turn.

I don’t want to appear to be a gold-digging arrogant git. In a criminal case, or divorce case, if I were to be issued a subpoena as a lay witness, well, that’s just life and I have to accept it. But in this case, if I had known that this attorney was going to pull this stunt, I’d probably have refused the case in the first place.

I’m going to send him an e-mail asking him whether or not he expects to call me as an expert. I could use some advice on the wording. :slight_smile:

I am not exactly sure why it matters if you are called to testify as an “expert” or not. I charge a flat fee for time plus my travel expenses and time. I don’t care if they want me to talk about the weather. Time is time and I must be paid for it.

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.

What **Billdo ** said.

You are definitely being called as an expert, not a “regular” witness. You don’t have any factual information that would allow you to be called as a fact witness (unless you had some involvement in the case that we don’t know about).

When I did trial work, I always subpoena’d all my witnesses, including my experts. It was a way to confirm their participation at trial, to underscore the importance and gravity of the event, and – as Billdo said – to show the court that I’d done my best to obtain their presence, in the event they didn’t show up. It was the general practice in the jurisdictions I practiced in.

Certainly you should call the attorney and clarify what his or her expectations are for trial. Are you supposed to show up the first day of trial and just hang around? Or do they know they won’t need you until Day 3? How will you be paid? How much will you be paid?

But actually you should already have a contract that provides for your compensation, including trial. If you have a contract that provides that you will be paid by the hour, then after the trial, just send him/her a bill for your time. And standing around the courthouse is as much a use of your time as actively testifying is. You should expect to be paid for all your time, and I’m 99% sure the lawyer who hired you would not expect anything less.

You are his expert witness, I’m not sure how having a subpoena issued makes you not an expert. Did he tell you you were no longer an expert? Because really, if you aren’t an expert then you aren’t needed at the trial. Anything you say is irrelevant and would be objectionable by opposing counsel.

If your report is being used as an exhibit, you would need to be there to authenticate it if the attorneys refused to agree that you authored it. Or it could be that opposing counsel is disputing your qualifications as an expert.

Just ask the attorney outright: Am I testifying as your client’s expert witness? You need to know to prepare for trial.

Thanks for all the good wise answers.

I will send an email like this:

Hi X. Are you wishing for me to testify as an expert?


If the affirmative: I would like some time to go over my report with you. What exactly do you see me testifying to/against?

If in the negative: I do hope you understand that I will need to bill you for my time at the courthouse. Also, I gently suggest to you that you and I need to talk about what testimony you are thinking I will give.

Followed up with a letter of agreement, with a place for him to sign his agreement, and attached my schedule of fees for 2007.

Sound OK ?

This gives the impression that you are not planning to bill for your time if the answer is affirmative. I don’t think that’s the impression you want the client to have.

Dear Attorney:

Thanks for the heads up about the subpoena. Attached is my 2007 schedule of fees. You will see that my rates have/have not gone up slightly.

I’d like the opportunity to talk to you about the case, and my testimony particularly, before I testify. Please let me know when would be convenient for you.

Thanks much,


Every single expert witness with whom I have worked has always assumed he or she would get paid. And, like Billdo and Jodi said, the fact that you’ve been subpoena’d doesn’t say to me that you are anything other than an expert witness. (Although here in California we don’t tend to subpoena our experts, I could see situations where I might in fact do that.)

Sorry for being unclear; I didn’t mean for it to sound like that the subpoena was the reason I thought he was trying to get around it. It was the tone of his conversation, and the way he approached me. Every other attorney always goes over my report (and reports of opposing’s experts) with me in great detail, and we discuss the issues of the case, both positive and negative. The opposing attorney asks for a deposition, which we prepare for a couple of days before hand. None of that was done this time - he just called me up out of the blue and said, “Oh, by the way you’re getting a subpoena for this case. I want you to testify for me because you were on the site and observed the flooding”.

FatBaldGuy. Right. I would include that stuff either way. :wink:

Chief Pedant brings up another issue about this case which I want to clear up with this attorney, concerning some differences of opinion (mine vs. his) about the cause of the flooding - perhaps that is why I am uneasy about it to start with. I can see it turning out similarly to the case of the neck injury Chief mentioned.

BTW he is both the plaintiff AND the attorney. For some reason that combination doesn’t seem to do very well at trial. :confused:

I like Campion’s suggested letter very much. That should do the trick.

When I was a prosecutor, I would subpoena all of my witnesses for trial. Made no difference whether or not they were experts - it was my way of ensuring their attendance or, if they failed to appear, having some ammo to go to the judge to show due diligence in case I had to request a continuance (and, just once, to get a bench warrant for a recalcitrant, non-expert witness).

I would expect counsel in a civil case to pay an expert witness at her normal rates - nobody likes a cheapskate.


Jodi (and other attorneys), based on post #16, is it possible that the attorney in this case might be planning to call NinetyWt purely to provide fact-based testimony without asking for his professional opinion? And if so, would the attorney still be obligated to provide expert witness fees?

Granted, this seems like an unlikely strategy, but I am curious.

Possible, based on this:

It’s, er, complicated.

We talked about it a little bit in this thread, beginning at post #42: