Gosh guys…..sorry to make you wait two weeks. Life got a little in the way since the last time I put pen to paper. All has righted itself (hooray!) and I am now ready to fill everybody in on what you should be thinking of as you develop your fee schedule for expert witness work.

I suppose it is pretty obvious that you will want to build your fee schedule around the activities that you will perform. What might not be quite so obvious is that your fee schedule is going to find its way into many people’s hands, those that are involved in the case and those that might simply be interested in using you themselves. Take the time to make this document look professional, concise and comprehensive.

So, how can you achieve a fee schedule that is both concise and comprehensive? Well….what I am getting at is that you need to make sure to cover all of the bases, but at the same time don’t craft something that is so complicated people are put-off from hiring you. Or worse yet, that leaves them thinking that buried in your fees is some clause that will triple their expenses.

To help with the comprehensive part- below are the key items to cover, each of which should be presented as an hourly rate:

  • Record review and any other materials related to trial;

  • Research in support of the retaining party;

  • Trial preparation (this should include emailing and phone calls);

  • In-person work including, consultation and investigation assistance*;

  • Expert witness report preparation (or white papers, research summaries – basically any written documentation you are specifically asked to provide);

  • Appearance/testimony at depositions or trial* ;

  • Travel expenses including travel time**;

  • An untimely cancellation clause for a deposition or trial testimony (think about something like having gotten less than 48 hours notice);

  • A reminder statement of who is responsible for payment, and that your compensation is not contingent on the outcome (please remember this);

  • A statement stating when the retaining party can expect to be billed and what payment terms you are setting; and

  • A signature and date line.

Those of you with great eyesight probably noticed the tiny * at the end of two of the lines above. For these two items I recommend that you set a reasonable minimum number of hours, meaning set the hourly rate but with some reasonable minimum of your time. Trust me on this - in-person work can take a huge chunk out of your time. For example, you could be called to testify but may find yourself cooling your heels for a couple of hours before you are actually on the stand. This is a lot like going to see your doctor! Or the BMV!

There’s also a line that has been awarded two **! This one will take some thought on your part. If you have to drive a good distance or fly someplace to meet with the attorneys you’ll want something in there that gives you some compensation during travel. For me, anything I need to do that is in my home county is free of charge. Outside of that I bill at a much reduced rate for half the travel time needed. That’s the way we did it when I was consulting and it still seems pretty fair.

Something that I did not address myself, but that I have wrestled with is the cost of making copies. Look folks – I’m old school on some stuff. I can read most depositions on line but if I am asked to review 6 years worth of progress notes I head straight to my local Office Max. I have not charged for this, but just to give you an example, earlier this year one trip cost me nearly $700!! Youch! It paid off though – I was better able to organize the documents and I found some nuggets that had been buried pretty deep. This was a big, big help to the attorneys. End of the day – think about this and whether you want to add something or not.

Okay now that the big stuff is identified - here is my best general advice for overall success with your fee schedule.

  • Keep your fees on a single page and make it professional (no typos guys!);

  • Add your logo if you have developed one and add your contact information (this should be on every document you create); and

  • Create reasonable fees - if you are new at this I don’t care how many years of experience you have in your industry, set your fees lower until you have developed a name for yourself as an expert witness. You don’t have to give your services away (that comes later when you’re reading 20,000 documents), but you don’t want to have the payer thinking that for what you’re charging they could get a highly experienced expert.

That’s it for now my friends- I hope this was helpful! Next time we’ll talk a little about avoiding pitfalls – which I'll call “lessons from the trenches“.

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As I promised last week, today we are going to take a look at one of the most critical aspects of the expert witness business- how much do I charge? While there are some helpful hints online (Google people!), much depends on the following factors:

· What industry you represent as an expert

· Where you are located (think New York verses Zanesville, Ohio)

· The level of competition (there are a lot of doctors but there are not many neurosurgeons!)

I think all of us can understand that a neurosurgeon is going to have a much higher hourly rate than someone like myself, who focuses on social services. It’s logical, right? So naturally (and logically) medical doctors tend to be the big winners in the field, commanding around $500/hour on the low end and going up, up, up from there. (It’s also important to note that the more popular an expert is, the greater their reputation and subsequently the higher their fee - just like high school!!). When an insurance company is staring at a medical malpractice award that could reach in the millions, the price of a top shelf expert probably seems like money well spent.

And speaking of insurance companies, this might be a good time to talk about who is paying. The bottom line is each party pays for his/her own experts. Sounds simple, right? Well, not so much.

The work that I have taken on over the last few years has always been on the defense side of the table. Typically either an organization or one of their employees (OR BOTH!) is being sued and so my fees have been covered by the organization’s insurance company. The insurance company is also responsible for approving my contract and my fees. And so, while my contact is always the attorney, and it is the attorney who reviews/approves my charges, the check will be written by the insurance company.

As of yet I have not contracted for any cases on a Plaintiff’s behalf. This is not to say that I would never do this work, it is just that my background as a consultant and an executive have given me both experience and a strong preference for organizational defense work. That said I believe if there is no insurance company involved it is the hiring attorney who is responsible for paying the expert witness fees….unless they do not win ….in which case it might fall on the Plaintiff (the person suing) to pay any expert fees…..ouch.

Okay! Now that we know WHO is going to pay us, let’s go back to talking about what is a reasonable charge for services. This is the place where you need to do your own research, based on your particular industry. If I can point you in a particular direction I suggest that you check out the Expert Institute who publishes an Expert Witness Fee Calculator with data gathered from thousands of expert engagements across all (or nearly all) specialties. In their report they have identified the average national fees for case reviews, depositions and courtroom testimony. The Expert Institute also breaks down those specialties that command the highest fees as well as those that are currently on the rise.

According to SEAK, the median hourly rate for a medical expert to conduct a file review is $350/hour. This fee is 43% higher than what a non-medical expert charges to conduct a file review (time for a challenging math quiz…….yup, about $200/hour). The median testimony fee for medical experts is $500/hour while the median testimony for the rest of us average folks is $275/hour.

These resources should be good places for you eager newbie experts to start your research. Next week we will focus on exactly what services are to be charged… like lunch! Trips to Vegas! Nah......just a pipe dream.

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There are a few organizations that are available to Expert Witnesses, whether experienced or like me, just in the first few years. One that caught my eye early on is SEAK. Seak is a continuing education, publishing, marketing and consulting company that works with experts in all specialties.

One of the facets of the company that I have personally enjoyed is the abundance of white papers, resources and articles that offer explicit advice (next week's topic - how do I figure out what to charge??) and general good sense information.

One article that I came across on LinkedIn was written last August by Bruce Burk. His article which I am including below is well worth the time to read if anyone is serious about looking into this field.

Wait......that isn't quite right. The advice in this article is good for ANYONE. The qualities that Burn describes can be adapted to any employment situation. Being confident, knowing your field (do your research!), paying attention to the details and being trustworthy- these are qualities helpful to any employee. So maybe you don't want to be an expert, but you are

looking to either take on a new challenge, change industries, or have your eye on a promotion....please read on! And for those of you out there who are interested in becoming an expert - take the time to look into SEAK and particularly their Expert Institute. There is a wealth of knowledge just waiting for you.

9 Personal Qualities You Should Look for in an Expert Witness

Updated on August 12, 2020 Author: Bruce Burk

When attorneys look to hire an expert witness for their case, they look for certain qualities that they believe will result in a win for their clients. In any area of the law, the quality of expert witnesses can range from excellent to very poor. Moreover, attorneys can spend thousands of dollars for an expert opinion that they need to prove their case. But while obvious qualifications such as an expert’s education, skills, and work experience are reliable, objective indicators of an expert’s suitability for a case, there are a number of intangible, personal qualities that are equally important to consider. This is why many attorneys look for the following list of traits in expert witnesses to make sure that they have an expert whose opinion will be believed by the judge or jury.

1) Confidence

Confidence matters. Expert witnesses are subject to depositions and are often cross-examined by opposing counsel regarding how they came to their opinion. What is more, expert witnesses may have to testify in front of the judge or jury and their opinion needs to be believed by people who are not familiar with their area of specialty. A confident expert sends a message that they believe their opinion and that means the judge or jury should as well. An expert who is not confident about their opinion can send a message that the judge or the jury should have reason to doubt what they are saying which may cause them to look to the other side’s expert.

2) Rigor

Expert witnesses need to have scientific or specialized knowledge that is the basis for their opinion. Many times, an expert will say that they base their opinion on their years of experience. However, if you are dealing with a scientific or medical opinion a Daubert objection could potentially be raised if they have no peer reviews or research journals to use to support their opinion. In hiring the expert witness, you should ask what type of research that they looked at or relied upon in forming their opinion or if their methods are also used by other members of their specialty.

3) Consistency

An expert opinion is delivered primarily in three stages. First, you have the time where the expert prepares a report, documenting their findings, and the methodology they used to obtain them. Second, there is the deposition where the expert testifies regarding their opinion and is cross-examined by opposing counsel. Third, you have when the expert is testifying in front of a judge or jury. Many expert witnesses testify in multiple cases and they may not remember everything they say in their reports or in their depositions. This can cause inconsistencies which can be pointed out by the opposing party in order to diminish the opinion of your expert. This is why it is important that your expert is consistent through the entire process of preparing of the report, the deposition, and testifying at trial.

Consistency also matters from case to case. Let’s say an expert gives an opinion on the causes of heart disease in one case where he says that smoking does not cause heart disease. Then, let’s say he gives a second opinion where he says that smoking can cause heart disease. Let us further assume that we are in a county where the law firms talk to each other and exchange transcripts of depositions between cases. This opens to the possibility of your expert witness’s opinion being impeached by an inconsistent opinion in a prior case.

4) Attention to Detail

In litigation, details matter. Whether you looking at a long list of medical records or a compilation of complex engineering schematics or patents, expert witnesses need to have a high level of attention to detail. The failure to exercise high attention to detail can result in the expert being crushed in a cross examination for failure to take the proper time to examine the facts before rendering an opinion. One of the most common ways to undercut the opinion of an expert witness is to point out all the things that were not done or not reviewed in rendering the opinion.

5) Trustworthiness

Expert witnesses need to convince others that their opinions can be relied upon. Trustworthiness begins with appearance. Expert witnesses should be properly and professionally dressed for their appearance in court or at a deposition. Expert witnesses should speak with confidence and should be attentive when rendering their opinion. Trustworthiness also means that they are not willing to ignore facts that are unfavorable to the side that hired them. Reputation matters when we are speaking about trustworthiness and experts should avoid rending ill-formed opinions that could damage their credibility.

6) Experience

All expert witnesses should have a detailed curriculum vitae that outlines their educational background as well as any licenses, publications, speaking events, and honors that the expert has received. Expert witnesses should have top-level educational credentials and should have stanched the level of experience in the area that they are rendering an expert opinion. While relevant professional experience is always a requirement in an effective expert, additional experience with public speaking, teaching, or other interpersonal activities can indicate that a potential expert will likely be a strong choice in a testifying role.

7) Effective Communication

Expert witnesses need to be good communicators. This means that they have to be comfortable using the technical language that is common within their profession. They should be able to speak without hesitation or needing to refer through records in order to render their opinion. Good experts need to be capable of understanding the questions that are posed to them by the attorneys and specifically answer the question asked. An expert who is a good communicator can summarize complex scientific, medical, or specialized facts in a concise way, which allows the judge or jury to understand what they are saying.

8) Dedication

One of the most important functions of an expert witness is the preparation of a detailed written report of their opinion. The expert report should compile all records that were reviewed in order to render the opinion and outline a concise summary of their findings and recommendations. Good experts will often ask you to send them records because they believe they need to review additional information to properly support their opinion. One of the techniques attorneys use in trying to diminish the opinion of an expert is pointing out things that they are testifying in deposition to which are not contained in their expert report. The expert report should be free of typographical errors and should have proper chronologies, or a list of all relevant facts that were reviewed to come to the opinion. Good expert reports also cite to relevant authorities in peer-reviewed journals or other sources to bolster their testimony.

9) Ability to Improvise

Finally, good expert witnesses need to be able to improvise. One of the most important times in litigation is when an expert witness is asked a question that they are not prepared to answer. Expert witnesses are often asked hypothetical questions that they are not prepared to answer and knowledgeable experts need to be able to come up with answers to complex hypotheticals on the spot. A common trick that attorneys used in order to diminish the opinion of an expert witness is to get them to say, “I don’t know” to a large number of questions. Expert witnesses should be able to think on their feet based on their training to answer questions they did not anticipate. However, they should always be careful to only answer questions that fall within their specific area of expertise.

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