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What Fees Can Expert Witnesses Charge?

On occasion, expert witnesses agree to work for free. Dr. Martin Tobin, a lung and critical care specialist with more than 40 years of experience, testified that George Floyd died due to a lack of oxygen after Derek Chauvin knelt on Floyd’s neck. Tobin has been compensated for his expert testimony in several civil cases, but he did not charge prosecutors for his expert testimony in Chauvin’s criminal trial.

In some cases, expert witnesses testify as part of their employment. A mechanic who works for an auto repair business might explain why a brake failure that caused an accident was not caused by a faulty repair. In that case, the mechanic is testifying as an expert but will generally be paid only the hourly wage that the employee earns for performing work duties.

In most cases, however, expert witnesses are retained for litigation and promised a fee for their expert assistance. As a general rule, experts are free to set their own fees for acting as a consulting or testifying expert. 

Lawyers, on the other hand, rarely have unlimited budgets. They can only pay fees that their clients can afford. Lawyers are also constrained by rules of professional responsibility that might limit the amount they can pay. Expert witnesses should be aware that lawyers may pay them a reasonable fee but not an exorbitant fee.

Ethical Constraints

The ABA Model Rules of Professional Conduct prohibit lawyers from offering an inducement to a witness that is prohibited by law. For example, a lawyer may not bribe a witness to testify in a particular way. The payment of fact witnesses (as opposed to reimbursing travel expenses) is often regarded as a prohibited inducement to testify.

A comment to that rule makes clear that a lawyer may “compensate an expert witness on terms permitted by law.” Since paying reasonable compensation for an expert’s work is not an unlawful inducement to testify, paying an expert’s fee typically raises no ethical issues.

The rules of professional responsibility in many states address the payment of witnesses more directly. The professional responsibility rules in many states prohibit lawyers from paying more than a “reasonable and customary fee” to expert witnesses.

Reasonable Fees

A fee that the expert has charged in other cases is usually the “customary” fee of an experienced expert. When a witness has given no previous testimony as an expert, a customary fee might be the fee that experts with similar qualifications who are of similar stature charge for their testimony. Fee surveys might provide new experts with guidance as to customary fees charged by expert witnesses in their field.

Unless it is clearly exorbitant, disciplinary boards will generally regard any fee that the expert and the lawyer agree upon at arm’s length as reasonable. The dividing line between a reasonable fee and an exorbitant fee, however, can be difficult to draw.

The issue of reasonableness usually arises when a court requires one party to pay the fee of an expert who testifies for the opposing party. For example, a federal court must require the party taking the deposition of an opposing party’s expert to pay the expert’s reasonable fee for testifying. When permitted by statute, a prevailing party may be able to recover the fees that the party paid to its expert witness.

Federal courts consider several factors when they decide whether the fees charged by an expert witness are reasonable. Those factors include: (1) the expert’s area of expertise; (2) the education and training required to provide the expert insight that is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually being charged to the party that retained the expert; and (6) fees traditionally charged by the expert on related matters.

When both parties employ experts, the court may compare the fees charged by the competing experts as a guide to reasonableness. However, when one expert has stronger credentials or more experience than the other, it isn’t unreasonable for the more qualified expert to charge a higher fee.

The reasonableness of an expert’s fee depends not just on the expert’s hourly rate, but also on the number of hours that the expert bills. Courts generally recognize that an expert must prepare to testify in a deposition. Courts will often agree that it is reasonable for an expert to spend two to three hours preparing for each hour spent testifying.

The time it takes to prepare an expert report is a function of the complexity of the case. When the expert is not required to do extensive research and the facts are simple, the reasonable time to prepare a report will be less than the time required to draft a report in a more complicated case. There is no rule of thumb that helps experts determine the reasonableness of a total fee. As a general rule, if the expert works efficiently and charges a customary hourly rate, the expert’s fee will be reasonable.

Hourly Rate vs. Flat Fee

Most experts charge an hourly rate. Some experts charge a flat fee. Fee agreements might also combine the two forms of payment. An expert might charge an engagement fee that locks in the expert so that the expert cannot be hired by another party. Engagement fees are a fixed sum of money, but they are often treated as retainers. 

An expert who charges an hourly rate might credit a lawyer with an advance payment for the hours covered by an engagement fee. However, experts often require an engagement fee to be nonrefundable, treating the engagement fee as the minimum fee that will be charged for the expert’s work.

Flat fees are often charged per task. For example, an expert might charge a flat rate for each day (or half day) of trial testimony or for each day (or half day) of deposition testimony, regardless of the length of time that the expert testifies. 

Some experts offer services pursuant to a hybrid fee agreement. They charge hourly rates to review documents, meet with lawyers, perform the work needed to reach an opinion, and write a report. They then charge a flat fee to testify.

Contingent Fees

Lawyers cannot pay an expert witness a fee that is contingent upon the trial’s outcome. Even if the lawyer has agreed to accept a contingent fee in a personal injury case, the lawyer cannot enter into a contingent fee agreement with an expert witness.

Courts and the authorities who regulate lawyers fear that expert witnesses will slant their testimony to favor a party if their payment is contingent upon the party obtaining a favorable verdict. Since the court system benefits from honest experts, it disallows contingent fees for the same reason that it prohibits lawyers from paying unreasonable fees. The judicial system discourages any fee arrangement that creates a strong incentive to testify falsely.

Patent law

USPTO Cannot Shift Expert Witness Fees

The U.S. Court of Appeals for the Federal Circuit has issued a precedential decision denying the U.S. Patent and Trademark Office’s request to shift expert witness fees.

The Underlying Dispute

Gilbert Hyatt is an individual who has filed and litigated many U.S. patents. In 1995 alone, Hyatt filed hundreds of lengthy and complex patent applications. Four of the many patent applications that Hyatt filed in 1995 included 1:05-CV-2310-RCL, 1:09-CV1864-RCL, 1:09-CV-1869-RCL, and 1:09-CV-1872-RCL.

After adverse results at the U.S. Patent and Trademark Office (PTO) regarding the four patents at issue, Hyatt sued the PTO under 35 U.S.C. § 145, which allows a patent applicant to challenge a PTO decision in district court. The PTO filed a motion to dismiss Hyatt’s suit, arguing that his patent should be unenforceable because of the unreasonable and unexplained delay in prosecuting his patent, which was an abuse of the patent system. The district court rejected the PTO’s arguments and ordered it to issue a patent covering some of Hyatt’s claims. The PTO appealed.

While the appeal was pending in the U.S. Court of Appeals for the Federal Circuit, Hyatt filed a motion to recover his attorney’s fees under the Equal Access to Justice Act. The district court granted this motion in part because Hyatt had won his case in district court. The U.S. Court of Appeals for the Federal Circuit vacated and remanded this decision, ruling that the PTO had met its initial burden of proving its case, therefore, Hyatt was not the prevailing party and not entitled to attorney’s fees.

The PTO simultaneously filed a motion to recover its expert witness fees under 35 U.S.C. § 145, which states that “[a]ll the expenses of the proceeding shall be paid by the applicant.” The district court noted that there was no precedent dealing with the American Rule presumption against fee-shifting and denied the award of expert witness fees. The PTO appealed.

The U.S. Court of Appeals for the Federal Circuit

The court immediately vacated the district court’s award of attorney’s fees to Hyatt because, after it had remanded the case, he could not be considered a prevailing party. It then examined whether 35 U.S.C. § 145’s language that “[a]ll the expenses of the proceedings shall be paid by the applicant” requires that the applicant pay the expert witness fees of the PTO. 

The court noted that the U.S. Supreme Court has upheld the “American Rule,” which requires that litigants pay their own fees “unless a statute or contract provides otherwise.” For a law to overcome the presumption set by the American Rule, “Congress must provide a sufficiently ‘specific and explicit’ indication of its intent to overcome the American Rule’s presumption against fee shifting.”

The court then interpreted the language of § 145 and determined that it was not sufficiently specific to overcome the presumption against fee-shifting. It affirmed the decision of the district court.

Pennsylvania Murder Trial Costs Taxpayers Thousands in Expert Witness Fees

A capital murder trial in Pennsylvania has cost York County taxpayers over $16,000 in expert witness fees, with more to come when the case goes to trial in July.  The defendant, unable to pay for his representation, is entitled to a complete defense which includes experts on pathology and mitigation who will testify on his behalf during the upcoming trial.

Pennsylvania County Pays Expert Witness Fees

Ross William Crawford, 44, is accused with first-degree murder for allegedly stalking and beating Cherylann Dowell, 53, to death in June of 2012.  Prosecutors argue that since Crawford was under a no-contact order to stay away from Dowell after a history of abusing her, there is sufficient aggravating circumstance in the case to seek the death penalty.  Pennsylvania law allows for the death penalty if aggravating circumstances of the crime elevate the heinous nature of the act, and prosecutors argue that Crawford had established a pattern of abuse and stalking that sufficiently raised his culpability to warrant a death penalty verdict.

As is required by the Constitution, jurors must determine whether or not any mitigating factors outweigh aggravating factors before issuing a death penalty verdict, and defense attorneys requested the court grant funding for use of expert witnesses to highlight mitigation.  Additionally, defense attorneys requested funding for an independent pathologist to analyze the details of the Dowell’s death and, presumably, argue against the presence of aggravating circumstances that would suggest the death penalty is warranted.

From July 2012 to May 2014, the York County court approved a payment of $16,000 to pay for the two expert witnesses the defense team for Crawford has hired.  Judge Gregory Snyder set a cap for the expert fees as follows: the pathologist, who charges $300 per hour, can be paid up to $3,000; the mitigation expert, who charges $100 per hour, has fees capped at $10,825; and a third expert witness, a psychiatrist who charges $500 per hour, has fees capped at $10,000.  If all expert witnesses work to the capped amount, the total bill to be paid by the county will be $23,825.  Add in the more than $9,000 in attorney’s fees, and the Crawford murder trial is costing York County significantly.

Capital Murder Trials Accumulate Fees

The Crawford trial is not a unique situation, but is a representative of the significant cost attached to capital murder trials.  No matter how heinous the crime, every defendant has a right to a fair and vigorous defense which typically requires, among other fees, expensive expert witness testimony.  Capital murder trials carry an additional cost due to the split phases of the trial: the guilt phase and, if necessary, a separate penalty phase.  Expert witnesses are required for both portions of the trial, and in the Crawford case, the pathologist will be a part of the guilt phase of the trial while the psychiatrist and mitigation expert witness will contribute separately to the penalty phase.

Because defendants have a right to a complete defense, lack of funds cannot be a barrier to hiring expert witnesses for any criminal trial – although capital trials are more likely to grant leeway in expert witness requests.  Like many counties, York County sets aside a significant dollar amount, $320,000 in 2015, to pay for professional services for indigent defendants such as psychiatric counseling or expert witness services.  While tax payers may be turned off by the thought of contributing significantly to the defense of an accused murderer, the Constitution requires a fair criminal trial which typically requires expert witness testimony to analyze and explain facts of the crime.

Report Indicates DOJ Spent Unauthorized Millions on Expert Witnesses

A recent report indicates that the US Department of Justice paid $15 million for expert witnesses who were not needed by federal prosecutors, and an additional $10 million on experts whose use was not clearly defined. The report, released by the Justice Department’s inspector general, revealed poor governance of the DOJ’s expert witness program that resulted in unjustifiable payments.

DOJ Hires Unnecessary Expert Witnesses

The Inspector General (IG) report reviewed 729 expert witness contracts across the US and found that 74, over 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}, did not meet the federal guidelines for obtaining witness services. Of those 74, 43 were hired “before or without a court docket date,” which is one of the criteria of the federal expert witness spending guidelines. In the other 31 cases, the IG report found: (1) there was no indication that expert testimony was anticipated, (2) expert services were provided for cases heard outside of the federal judicial system; or (3) administrative services were the primary purpose. All three uses of experts are not approved under the spending guidelines.

These 74 contracts totaled $15.2 million, which is close to 9{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the close to $180 million that was spent on the cases the IG reviewed. The IG report was not finished, however, as investigators also discovered questionable spending on experts for reasons that were unclear.

IG Report Finds Suspect Expert Hiring

In addition to the 74 contracts that seemed in clear violation of expert witness spending guidelines, the IG report found 39 expert contracts that could not be verified. In these 39 cases, the IG could not determine if the contracts fell within the federal spending guidelines because either the contract terms were too vague or the guidelines themselves were. These 39 contracts totaled $10 million, bringing the total amount of money that was either misspent or unsupported to $25.2 million.

The expert witness contracts costing the federal government millions of dollars without adequate support under spending guidelines, but the agreements were not the only questionable expert spending decisions made by the DOJ.

Expert Witness Report Reveals Excess Spending

The IG report also found several instances of unallowable or unsupported travel expenses paid to expert witnesses by the DOJ. The report noted more than $24,000 spent on hotel charges that were not permitted under spending guidelines, and 26 instances of unauthorized first class travel for experts. Going further, the IG identified more than $100,000 spent on computers that were not solely used by experts – a practice that is not permitted. The IG investigation also uncovered $1.2 million spent on expert witnesses in cases that were not tried in US courts.

At the conclusion of its report, the IG expressed the need for greater institutional control across the DOJ to limit the occurrence of impermissible expert witness spending. With President Obama requesting more than $270 million for the DOJ’s expert witness program, the work done by the Inspector General highlights the need for better financial accountability. The report made 12 recommendations to both strengthen the expert witness spending guidelines and improve training of those responsible for monitoring the expert program’s financial decisions. Improved education across the DOJ staff and regular auditing of expert witness spending should, according to the IG, limit the unauthorized financial decisions that have cost the federal government millions of dollars.