Expert witnesses are an important part of many personal injury cases. In many cases such as medical malpractice and products liability, experts are essential and a case cannot proceed without them with very few exceptions.
While most witnesses in court are usually not allowed to give their opinion, expert witnesses are often asked for their opinion as part of their testimony, based on their knowledge in their field. Other experts are not needed to testify in court, but are consulted for a variety of reasons.
Experts may be needed to review files and documents, review medical records, review accident reports and accident reconstructions, conduct accident reconstructions, perform research and testing, interpret data and many other tasks that experts are uniquely suited to perform. Ultimately, the expert may be called upon testify in depositions and at trial.
There are several kinds of expert witnesses. An expert witness can be a treating physician, forensic pathologist, laboratory technician, psychiatrist, accident reconstruction expert, engineer, architect, handwriting specialist, etc. Some experts are appointed by the court while others are called as witnesses by a particular party. In some situations a party may call an expert to give his or her professional opinion as part of their testimony in court, while in other situations experts are used to discredit or contradict an opposing party’s expert.
An expert witness must be qualified as a witness to be allowed to testify in court. A witness may qualify on the basis of their experience and/or education and must testify on a subject that will assist the jury in understanding an important fact relevant to the case. An expert witness’s opinion must have a reasonable degree of probability or certainty and may be based on personal knowledge of the facts as well as evidence both in and outside the trial record. An expert’s opinion must be reliable and based on accepted principles and tested methodology generally used by other experts in the same field.
There are several high costs related to expert witnesses. First of all, several types of witnesses require some kind of retainer paid up front. Experts often require a retainer (prepayment). Retainers, depending on the type of expert, can be very expensive with an estimated average retainer of about $4,000.
Once an expert has been identified, experts charge different rates for file review, preparation, depositions, and trials. Hourly rates for testifying at trial are usually significantly higher than the hourly rate for preparation and depositions. Rates for in-court testimony generally range between $300 and $600 an hour but can be higher; while rates for file review, preparation, and depositions range from $200 to $400 an hour which may also be higher. Medical experts usually charge significantly higher rates than non-medical experts. The average rate for in-court testimony for a medical expert is between $500 and $700 per hour. This can vary depending upon the type of case and the locale.
Adding to costs, many experts do not live in the same state where the suit is being filed or the trial is being held. In some cases, a party will have to travel out of state to be examined by the expert, or important evidence will have to be shipped to the expert for examination. Likewise, it is often necessary for the attorney to travel out of state in order to conduct the deposition of the expert(s). In other cases, where the expert will testify in court, the party must pay for the expert’s travel expenses and time. Clearly, these expenses can add up very quickly.
In complicated and lengthy cases, and even in relatively simple cases, expert witness fees can be substantial. Under contingency fee agreements, the attorney will often advance the costs of these experts. However, in the end, the client will pay those costs out of any settlement or judgment. It is important for clients and attorneys to have a frank discussion about witness fees from the outset of the lawsuit to avoid unpleasant surprises in the future.