Fee Structure and Payment Forms: How Expert Witnesses are Paid
As an expert witness, it’s your specific expertise that provides an essential service to litigators. In turn, the fees you charge depend on your experience, the specialty required by the hiring attorney, and a number of other case-specific factors. The structure of your fees will also vary based on the type and timing of expert service you are providing. Even your payment forms can vary—regular invoicing and retainer agreements being among the most popular options.
So how do you figure out what to charge for various expert witness service types? As an independent contractor, you will not be paid a standard salary. Instead, your fee structures will be built around the nature of the services you provide during the lifecycle of a case. Here, we will break down some common expert witness service types and discuss the potential fee structures that apply.
Immediately after you are hired, the attorney may want to jump on a conference call with you to pick your brain as they assess the technical aspects of the case. Your help in dissecting their client’s account alongside the lawyer’s initial reaction can be invaluable in assessing case viability and strategy.
You will likely want to agree on an hourly rate for these initial consultations. Also, be careful to not give free consulting during the interview and negotiation process. Save your valuable expertise for when you come on board as their expert.
It is quite common for attorneys to ask expert consultants to review records in the early stages of a case. For example, in a medical malpractice case, an attorney may need expert help in deciphering medical records to understand the totality of the patient’s history. Records may also illuminate the patient’s treatment experience and whether a medical professional met the applicable standards of care. In this scenario, an expert is invaluable for their ability to highlight this relevant information from a record review and report findings to the lawyer.
For record reviews, the most likely fee structure is an hourly fee. The average medical expert hourly rate for records review is $356 per hour. However, neurosurgeon expert witnesses can command $741 per hour for review projects. On the other end of the spectrum, an emergency medicine specialist’s hourly rate might be $381, and a nursing specialist’s falls around $190.
In legal disputes concerning a residential or commercial building, structural engineering and architectural experts are frequently hired to conduct a site inspection. An expert will assess a physical site and report on any issues they find. This includes the integrity of the structure’s foundation, material failures, geothermal subsurface conditions, site safety, security, or damage the building sustained from natural disasters or negligence.
Site inspections tend to be paid on an hourly basis. The rates will vary depending on the specific type of expertise, experience, and credentials of the site inspection expert.
Tests & Calculations
Another expert service that is typically paid by the hour is the development of tests and models to calculate damages. In antitrust cases, for example, economists are frequently hired to develop models to determine the prices plaintiffs would have paid but for the defendants’ alleged price-fixing schemes.
In personal injury and medical malpractice cases, lost wage calculations are also an area where experts are paid by the hour to estimate the amount of money a plaintiff would have earned if they weren’t sidelined by the injuries alleged in the case.
In order for you to testify at trial, you must also submit a written report detailing your intended testimony. This report must also be provided to opposing counsel prior to trial. Specifically, Federal Rule 26(a)(2)(B) requires a report, signed by the expert, that contains information including the expert opinions to be given and the facts or data considered in reaching these conclusions. The written report must also include the expert’s qualifications, prior expert witness engagements, and their compensation for the case at hand.
As an expert, you will likely be deposed by the other side. During a deposition, opposing counsel will ask you questions on the record to help them determine your attorney’s strategy and your opinions on facts important to their case. The questions are also designed to help them prepare to cross examine or even impeach you at trial.
There are two common fee approaches for depositions. One is to charge an hourly rate. Accident reconstruction experts, for example, may charge $267 per hour for depositions while a banking expert witness might earn $344 per hour, and an OSHA expert could expect $235 per hour. Your travel expenses should also factor into what you charge for depositions, or you can agree to be reimbursed in full for these expenses.
The second approach to deposition fees is a flat rate. Some experts elect to charge a flat fee, either at a daily or half-daily rate to appear for depositions.
There is a common exception to the expert hourly fee approach. Oftentimes, experts will charge a daily rate for trial appearances. You may need to observe the proceedings ahead of your testimony and wait in the courtroom or nearby until you are called to testify. New experts will want to avoid the mistake of only thinking about their time in the witness chair when discussing trial appearance fees. A daily rate—including travel time, non-testimony time in court, and any time waiting for your time on the stand—makes a lot of sense for this phase of the expert lifecycle.
It should also be noted that, contrary to a common misconception, expert witnesses are not paid a salary. Since expert services are, by definition, services provided on an ad hoc basis that vary from case to case, there is no standard salary. Expert services in legal disputes are not full-time, salaried positions. As an independent contractor, you will need to set your own fee structures for the different types of expert witness services.
Once you establish your expert witness fee structure for the different services you offer, you will also want to discuss payment form with clients. In other words, will you be paid after you completed work or will you draw from a retainer the client pays you upfront? Retainer agreements can offer a variety of benefits to your consultative approach and are worth exploring.