Giving a deposition, and my "usual and customary" fee

In My Humble Opinion
1

I have my first experience giving a deposition coming up. Even though it’s a civil matter that has almost nothing to do with me, I’m a bit nervous about it.

I was also told that I am to be paid my usual and customary fee for my deposition. I have no idea how to calculate this. As a resident physician, and thus a “semi-student”, my actual hourly salary is pretty laughable. We get paid a heck of a lot more than that to moonlight, though, and if you add up the charges for the four or so regular office visits I could do in that time, it’s even more. Or will the lawyer tell me what the usual and customary for a resident is? Do I charge them for just the time I’m being deposed, or also for the time I spend preparing for it (which will probably be 2-3 hours, about what they expect the deposition to last)?

Any other general advice on giving a deposition would be appreciated.

2

Go for all the market will bear. If it takes you out of 4 hours of moonlighting, ask for at least that amount. If not, ask for at least $300 an hour. Settle for no less than $150 an hour. Charge for the time being deposed, minimum one hour. If it runs 65 minutes, charge them for 90 minutes.

That’s my opinion, and nothing more. I’m no expert in that area. It’s been a while since I’ve been deposed, and since my employer pays me my usual salary when I’m about the State’s business, it’s no longer an issue for me. But if you’re in the situation where if you don’t see patients, you don’t get paid, well then, insist on payment. Up front, preferably. I was stiffed by more than one attorney who promised “I’ll pay you as soon as we settle”. No more.

3

Just out of curiousity, is there a stigma attached to “paid” witnesses? Anything along the lines of, “Well, you’re being paid to say what you say.” Or can the lawyers dance around that?

4

Just out of curiousity, is there a stigma attached to “paid” witnesses? Anything along the lines of, “Well, you’re being paid to say what you say.” Or can the lawyers dance around that?

5

Just out of curiousity, is there a stigma attached to “paid” witnesses? Anything along the lines of, “Well, you’re being paid to say what you say.” Or can the lawyers dance around that?

6

Damn! I only hit submit twice, I swear! How the heck did I score a hat trick? :smack:

7

It’s no actual cash out of my pocket. I’m doing an elective in the blissful last days of residency, so no one truly loses out if I don’t show up. (In fact, no one really even notices.) I was told by my program director to take whatever time I needed to do it and to have any payment sent directly to me.

It’s very customary to pay professionals for testimony they give in their professional capacity. I’m sure a lawyer could make something out of it, but it would be pretty hypocritical since it’s such a common practice.

8

Not to mention that the lawyer’s being paid for saying what she says! :smiley:

9

You are being paid for YOUR TIME - not for providing an certain opinion, or for being useful for a particular side.

So you should charge your what you expect to get paid for an hour’s work. If you’re a physician that should be no less than $150 an hour.
I’ve been deposed 3 times - I’m not sure the word to describe it is fun, but it’s not that bad. I’m sure if I were the defendant in the case I’d feel differently, but it has always been as an expert witness.

10

I have a certificate of special qualification in forensic psychiatry from my specialty board (Psychiatry and Neurology), and I used to do a lot of depositions. Definitely, charge for all the time you spend preparing for the deposition, reading the record, conferring with the lawyer, time and mileage in transit, etc. Most expert witnesses will set a minimum like two hours, one-half day, or whatever. I always asked to have the minimum paid the day before testifying, and I think that may be common.

The best advice I can offer is not to become emotionally involved with either side of the case. The lawyer who subpoenas you will go over the types of questions likely to be asked. Just testify to what you saw, heard, noted, thought, and concluded.

As WhyNot said, if asked “How much are you getting paid for your testimony?” the answer is Nothing. You are being paid for your time and your professional opinion. Your testimony is not for sale. They can hardly accuse you of being a “hired gun” if you have not been testifying on a regular basis.

Be careful to answer only the question asked, and don’t volunteer anything. That was always the toughest thing for me to remember.

These things can be kind of fun, but the object of the testimony is always serious: to give your professional opinion and give it clearly and thoroughly. It doesn’t matter that you’re still a resident, you’re a doctor and qualified to speak as one.

Best of luck to you!

11

Oh, wait. I don’t know your specialty, but Thomas G. Gutheil’s book The Psychiatrist as Expert Witness is a super reference that generalizes well to other specialties. (He may have written about testimony in other specialties also, but I don’t know.) It’s extremely readable. Witty too.

12

Thanks, all. I already agreed to do it (I wasn’t actually subpoenaed), and it’s already scheduled for later this week. He did say I’d be paid my usual and customary fee (he told our secretary to tell me this when I didn’t call him back the first time :slight_smile: ), but we didn’t discuss how much this was or when it would be paid. I guess I should have. (Hey, it’s all a learning experience.)

13

DoctorJ, I’m not your lawyer, you’re not my client, this isn’t legal advice and I’m not licensed in your jurisdiction, so read on at your own peril.

That said, are you being deposed as an expert witness or a percipient witness? I assumed from your post that you were being deposed as a percipient witness (i.e., a witness who has first hand knowledge of something, as opposed to an expert witness, who gives an opinion based on records, etc.), perhaps because you treated the plaintiff? If so, rules are slightly different for percipient witnesses than they are for expert witnesses.

Many states have laws that permit lawyers to pay the usual and customary hourly fee to certain professionals when being deposed (treating physicians, mainly), because otherwise they would never show up. If that’s the case, you can tell the lawyer who arranged your deposition that you’d like to be paid for the time you spent reviewing the file, your travel time and your testimony. If he tells you “sorry, the law says I pay you for your testimony only,” you tried.

As for the deposition itself, Ragiel has it spot on. The first rule is always tell the truth, no matter what. Listen to the question; don’t try to figure out what the question is getting at, but think about what the question is actually asking. Answer only what is asked, even if that seems really stupid. The classic example is “Do you have the time?” The answer is either yes or no. It is not, “It’s 7:30.” There are very good reasons for this rule, but this isn’t really the place to go into them.

Also, during the deposition, you’re Switzerland. You don’t have a dog in the fight; you’re just there to tell the truth. So if the lawyers start swearing at each other (or you), stay calm, stay focused and don’t get into the pit with them.

But bottom line, as long as you come out of it having told the truth, you’re in good shape. Good luck!

14

Yes, I am a percipient. Essentially (and being as vague as possible), a patient is suing an organization (to which I am unrelated) over an incident that happened well before I had even graduated from medical school. I am testifying as to the patient’s current health status. I am being deposed by the organization, not the patient.

15

If you’re testifying as to a person’s state of health, e.g. “The xray showed no sign of fracture, and he had full movement of the joint,” that’s expert.

If you’re testifying, “I saw a man in a blue suit walking down the stairs,” that’s percipient.

Since the incident took place well before your time at the site, they probably are asking for an expert opinion. It may go something like this:

“Doctor, did you form an opinion as to the plaintiff’s state of health at the time the record was made?”

“Yes.”

“And what was the opinion you reached?”

“(relevant opinion)”

Just tell them as much of the truth as you have to in order to answer the question.

You should do fine. You’ve probably handled questions from your attendings that were a lot trickier than anything these guys can think up.

16

Speaking as one who makes her living proofreading depositions and has read hundreds upon hundreds of medical depositions, I would say: Yup, not an expert as that term is used in legal proceedings. I take it you have been one of the patient’s treating phsyicians. So you’ll be asked stuff like this:

  1. Your name, address, perhaps other personal details such as where you gerw up, whether you’re married, have kids, names of same. The lawyers like to have a sense of you as a person but they’re not going to rummage much if at all beyond that.

  2. Educational and work background.

  3. Each and every encounter you’ve had with the patient, to the extent you can recall the facts of those encounters. If you can’t recall more than what your normal course would have been, state that but don’t volunteer that normal course until it’s asked for.

  4. Any written records you generated about the patient. You may be asked to read the records and to interpret/explain abbreviations.

  5. Your diagnosis, treatment, and prognosis.

Now, as a percipient witness your job is to state the facts within your knowledge – what you saw, heard, felt, were told by the patient, what you learned from other records of his/her case.

As to expert testimony, that would be your opinion, given what you know about the patient, of how the event being sued over affects the patient’s current state and what his/her likely future health will be.

Don’t be surprised if the lawyers get into a hassle over whether you should be offering expert testimony at any point. You may be asked to explain generally, “DoctorJ, patients who have Condition X, are they more likely to develop Condition Z?” and the opposing lawyer will jump in with something like, “DoctorJ’s here to testify as to this patient, not to give expert testimony about Condition X generally.” Then they’ll wrangle while you sit there thinking about all the stuff you could be doing instead.

Looking this over, I realize there’s an ambiguity in my understanding. If you’re solely a percipient witness, all the above applies. But it may be that the lawyer for one side or the other has formally designated you as an expert witness, in which case, yes, you can and will be grilled on your knowledge in general of Condition X, as a way of etablishing your credibility on that subject. Since you’re a resident, not a long-established poobah, I think that’s unlikely.

Other Dopers have given you very good advice. Take it, take whatever money you can extract, and look upon it as a safari into a strange foreign land.

17

Yep, definitely not an expert witness, because you’re not being asked about what happened before and whether you have an expert opinion about that. You’re going to testify about what you saw when you examined the patient now.

Note that while you say you’re being deposed by the organization, the patient’s lawyer absolutely will be there, too (as well as lawyers for any other parties to the action), and all the lawyers there will get their chance to ask questions.

EddyTeddyFreddy is right, that there may be some lawyer-wrangling over what you can and can’t testify to. While they’re wrangling, remember you’re Switzerland. When they’re done, answer the question. If you can’t remember what the question is anymore (because you were dreaming of Switzerland), ask them to repeat the question.

Good luck and let us know how it went.

We have a difference of opinion about this. From a legal perspective, both of those statements would be given by a percipient witness, not an expert witness.

18

Mrs Shibb works for a lawyer who handles lots of cases like this. She says that they pay around $450-635 for fees. This can include preparations, minimum time, etc. Don’t sell yourself short.

19

I did some reading at our state’s medical society webpage. My state seems to label one as either an expert witness or a “fact-expert witness”, which is the same as a percipient witness but acknowledges that a doctor testifying to health matters is necessarily providing his professional expertise as well. The only practical difference is that a “fact-expert” witness is supposed to charge his usual and customary fee (including time he spends preparing) and a true expert witness can charge whatever the hell he wants to.

I still didn’t find much about specific figures, but I’ll probably go for $150/hour, including my 2 hours or so of preparation time.

Thanks for the advice!

20

Words to remember next time:

Portal to portal.

:smiley: