By Benjamin J. Cantor, J.D.
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CONSULTANT OR WITNESS:
Experts employed by attorneys are generally hired as
consultants to aid in the preparation of a matter of litigation, or used as an expert
witness in a court trial or a deposition. Often times a consultant will mature into
an expert witness.
COMPENSATION AGREEMENT:
In either capacity, the expert should obtain a written
agreement, spelling out his compensation and a clear understanding as to who is responsible
for payment - the attorney or the client. Such a written agreement will
serve to eliminate any misunderstanding as to the expert's compensation or to whom the
expert should look for payment.
CONSULTANT FEES:
The terms of a consultant's fees should be based on -
(1) rate per hour; (2) experience and expertise; (3) out-of-pocket expense (such as
travel, etc.); and (4) and the nature of the task assigned (e.g., if it requires
painstaking efffort on the part of the expert, this should be taken in consideration).
EXPERT WITNESS FEES:
As for an expert's fee for testifying in a trial or a
deposition, the fee should be based ono - (1) rate per hour including waiting time in
court; (2) being on call; (3) expert's experience and expertise; (4) out-of-pocket expense
(such as travel, etc.); (5) the nature of the task assigned (e.g., if it requires
painstaking effort on the part of the expert, this should be taken into consideration.)
SUBPOENA:
If the expert is subpoenaed - without any agreement for
professional compensation - and is later qualified by the presiding judge as an expert
witness, he may not be required to perform any special service without an agreement for
payment for the expert's professional fees. In the event that the expert is
subpoenaed and is given only the statutory fee, he will probably not be as co-operative a
witness as one who voluntarily agreed to testify as an expert witness. However,
often times an attorney will serve a subpoena to his own expert to indicate that the
witness has appeared under court order.
CONTINGENT WITNESS FEES:
Any agreement to pay witness fees, which in any way is
contingent upon the outcome of the case, is invalid and void as against public policy, and
is unenforceable in every jurisdiction.
QUESTION: HOW MUCH ARE YOU BEING PAID?:
If, on cross-examination, you are asked --
"Are you being paid for your testimony?" - a suggested answer might be - "I
am being paid for my time, experience, expertise and out-of-pocket expense.
RETAINER:
In cases where the party who retains you is a new
client, you may want to consider requesting a retainer.
