The role experts play will vary from case to case. Expert witnesses are hired for their knowledge and have become an indispensable part of litigation. Therefore, you get paid for your time spent preparing and attending the deposition.
Sometimes an expert will serve solely as a consultant to the lawyer, and remain in the background, without his or her name ever being known to the other side. At other times an expert will be used in the pre-trial stages, perhaps to give an affidavit supporting an element of the case. In other cases, the expert may serve solely as a witness at trial. Sometimes an expert will play a combination of these roles.
A common issue among expert consultants is, “How do I make sure I get paid?” Determining who is responsible for expert witness fees can be a bit of a challenge. However, the code of civil procedure (CCP) offers much guidance on this matter and can assist legal practitioners in understanding the rules in California and apportioning the financial responsibility accordingly.
The party who requests the deposition is responsible for paying the expert’s fees in advance of the deposition, if possible. Otherwise, the fees should be provided at the deposition. The expert witness’s fees should not only involve the time on the witness stand, but the time spent evaluating matters, studying files or reviewing evidence, meeting with lawyers, coming to conclusions, and sitting around waiting to testify.
If an expert witness’s fees are not paid prior to the deposition, the expert and the non-deposing attorney have the option of canceling the deposition under CCP §2034.460(b). If you go forward, without the fee, make sure that the payment arrangement regarding what they’re going to pay you and when they're going to pay is on the record. Most experts who testify are paid at rates comparable to the normal fees they earn. It is not all that unusual for the expert to be paid slightly more for appearing at trial, than doing ordinary office work.
The most important step in getting paid is planning to get paid. Being compensated for your work is too important to leave to chance, hope or optimistic confidence in the decency of your clients. It’s business. Reviewing an entire case and then sending an attorney a large bill without having come to an agreement on the scope and cost of your work will cause a problematic situation, as you and the attorney most likely have different expectations. The video included in this blog post presents best practices that will help you get the fee you deserve.