Advice on being an expert witness? (And what to charge?)
March 4, 2010 10:44 PM Subscribe
Advice on being an expert witness? (And what to charge?)
I have been asked to be an expert witness in an arbitration hearing. One side alleges fraud, the other side (which wants to hire me) says "it's not fraud, it was unforseen market conditions." I've been asked to write a whitepaper explaining those market conditions, which is straightforward for me to do, and to travel for a deposition and testimony (two separate trips). I am a generally recognized expert in this field (which is how the law firm found me) and I've seen this previous question.
Anyone have any advice for being extra effective?
Any "gotchas" or concerns I should think about?
Suggestions on what to charge?
I was thinking $1,000 day rate for appearances + business class travel and some amount--maybe $2500--5000 for whitepaper. I dont' know if that's in the ballpark, but I'm also going to turn down the opportunity unless it's lucrative enough to use up two vacation days and a couple of weekends.
I have been asked to be an expert witness in an arbitration hearing. One side alleges fraud, the other side (which wants to hire me) says "it's not fraud, it was unforseen market conditions." I've been asked to write a whitepaper explaining those market conditions, which is straightforward for me to do, and to travel for a deposition and testimony (two separate trips). I am a generally recognized expert in this field (which is how the law firm found me) and I've seen this previous question.
Anyone have any advice for being extra effective?
Any "gotchas" or concerns I should think about?
Suggestions on what to charge?
I was thinking $1,000 day rate for appearances + business class travel and some amount--maybe $2500--5000 for whitepaper. I dont' know if that's in the ballpark, but I'm also going to turn down the opportunity unless it's lucrative enough to use up two vacation days and a couple of weekends.
It depends how much the case is worth, but I agree that you should be going hourly, not daily. Your fees would be much higher than $1000/day that way. In a very large, expensive case I was on, two experts in art charged between $250 and $350 per hour. I'd throw out something in that ballpark, and see if they balk. Basically, yes, being an expert should definitely be lucrative enough to make it worth your while. It's kinda an awesome gig.
Advice for being extra effective: Avoid the temptation of trying to please the lawyer that's hiring you too much. Remember, you're the expert. They may ask you if you can change what you're saying. In many cases you can, as you're just emphasizing things differently. But don't bend over backwards to adopt what they want you to adopt. An effective expert is one that actually uses that expertise, and works with the lawyer not to say the best thing possible, but rather the best thing that still comports with the facts. Make sure you're comfortable with what you're saying, and can solidly defend it. Maybe that's obvious to you, but I've seen more than one expert get killed on the stand that way.
posted by kingjoeshmoe at 1:12 AM on March 5, 2010
Advice for being extra effective: Avoid the temptation of trying to please the lawyer that's hiring you too much. Remember, you're the expert. They may ask you if you can change what you're saying. In many cases you can, as you're just emphasizing things differently. But don't bend over backwards to adopt what they want you to adopt. An effective expert is one that actually uses that expertise, and works with the lawyer not to say the best thing possible, but rather the best thing that still comports with the facts. Make sure you're comfortable with what you're saying, and can solidly defend it. Maybe that's obvious to you, but I've seen more than one expert get killed on the stand that way.
posted by kingjoeshmoe at 1:12 AM on March 5, 2010
In general, working as an expert witness is anything but an awesome gig. I make it a rule to not do any of this work unless I have a long-term consulting relationship with a client. As a one-off gig, you'd be better off to avoid it entirely. More trouble than it's worth.
It depends how much the case is worth,
USD1000 a day is too low and hourly is not the way to go. I charge a lot more than this per day or any portion thereof. Consider that you might sit for one hour in a courtroom just to be sent home early over some procedural foolishness and you've already booked the whole day. You should also set some minimum compensation. 600 dollars an hour seems like a lot until they only use one hour.
Also be clear on the payment terms - net 10 days. Law firms will otherwise first bill the client and wait for re-imbursement before paying you. Law firms are good at invoicing, they are less good at paying invoices. If you can be paid directly by the client this is the way to go.
kingjoeshmoe gives you good advice. Don't let the attorneys put words in your mouth (they aren't supposed to but the temptation is too great when your facts don't fit their narrative.) Your credibility is at least as valuable - if not more - as your knowledge. You're not taking money to help them win - you're being paid to provide testimony on a subject you know something about. Full stop. You should not care about the outcome.
Read the retainer agreement carefully. They are very restrictive and I have never signed one without major amendment. Keep in mind that you will never be able to say anything about your written documents, deposition, or testimony so you will not be able to correct misrepresentations that might come out later. Also you create conflicts which might impact your ability to do other work for other clients.
posted by three blind mice at 2:36 AM on March 5, 2010
It depends how much the case is worth,
USD1000 a day is too low and hourly is not the way to go. I charge a lot more than this per day or any portion thereof. Consider that you might sit for one hour in a courtroom just to be sent home early over some procedural foolishness and you've already booked the whole day. You should also set some minimum compensation. 600 dollars an hour seems like a lot until they only use one hour.
Also be clear on the payment terms - net 10 days. Law firms will otherwise first bill the client and wait for re-imbursement before paying you. Law firms are good at invoicing, they are less good at paying invoices. If you can be paid directly by the client this is the way to go.
kingjoeshmoe gives you good advice. Don't let the attorneys put words in your mouth (they aren't supposed to but the temptation is too great when your facts don't fit their narrative.) Your credibility is at least as valuable - if not more - as your knowledge. You're not taking money to help them win - you're being paid to provide testimony on a subject you know something about. Full stop. You should not care about the outcome.
Read the retainer agreement carefully. They are very restrictive and I have never signed one without major amendment. Keep in mind that you will never be able to say anything about your written documents, deposition, or testimony so you will not be able to correct misrepresentations that might come out later. Also you create conflicts which might impact your ability to do other work for other clients.
posted by three blind mice at 2:36 AM on March 5, 2010
Let me add
>Also be clear on the payment terms - net 10 days.
and that the obligation to pay is on the law firm. Ten days is maybe too short. It is appropriate for the law firm to send your bill to its client for payment, and it often will take 3-4 weeks to get paid. But it is also appropriate for you to take the position that late payment or no payment is not your problem, it is the law firm's.
The hourly rate, depending on the level of expertise that you bring to the table, and of course depending on how much is at issue in the case, should be $150-300 or so. I would suggest that you quote a rate on the lower side for your virgin foray, but don't undercut yourself.
Many witnesses will quote a minimum - $225 per hour, minimum 3 hours for a report, minimum 4 hours for a deposition, minimum 8 hours for a trial. The report may take longer than the anticipated time, if there are edits needed, etc. For appearances, you need a relief valve if there is a delay, which there very often is.
posted by yclipse at 3:56 AM on March 5, 2010
>Also be clear on the payment terms - net 10 days.
and that the obligation to pay is on the law firm. Ten days is maybe too short. It is appropriate for the law firm to send your bill to its client for payment, and it often will take 3-4 weeks to get paid. But it is also appropriate for you to take the position that late payment or no payment is not your problem, it is the law firm's.
The hourly rate, depending on the level of expertise that you bring to the table, and of course depending on how much is at issue in the case, should be $150-300 or so. I would suggest that you quote a rate on the lower side for your virgin foray, but don't undercut yourself.
Many witnesses will quote a minimum - $225 per hour, minimum 3 hours for a report, minimum 4 hours for a deposition, minimum 8 hours for a trial. The report may take longer than the anticipated time, if there are edits needed, etc. For appearances, you need a relief valve if there is a delay, which there very often is.
posted by yclipse at 3:56 AM on March 5, 2010
If you've never done it before, I strongly suggest that you make certain that you have at least several hours with the lawyer who is hiring you to go over your testimony. We get prep and class-room training and I still find the time in advance with the lawyer necessary. Being an expert is very different from other experiences.
Unlike a witness for the fact, your evidence is your opinion. You want to be able to state those in clear language and to be able to defend them without appearing hesitant or tentative. It is ok to pause and collect your thoughts before answering. It is ok to ask to refer to your notes to get specifics right, but do not come unprepared for your subject area. Do bring your expert opinion (which is what the document you are preparing is called, at least in Canada) to the stand with you. You are allowed to use notes, and you should, if necessary. Try to be consistent with your statements. If you say one thing a certain way in your opinion, say it that way in your testimony. Paraphrasing or restatement can introduce ambiguity.
If the questions go outside your area of expertise, don't be afraid to say so. Making definite statements on subjects you are not an expert on (but have some knowledge of) is one of the routes to failure as an expert witness.
The most effective experts are relaxed and know their subject but maintain a certain level of formality. Know how you should address the judge, the opposing council and the council that hired you. This can differ from jurisdiction to jurisdiction and court to court. It may not be what you expect from TV, for example. Remember that your audience is not the opposing council. You should address your remarks to the judge in almost all cases (caveat, never done a jury trial). Remember as well to not speak to anyone but the lawyer who hired you outside of court. If you get button-holed, be non-committal and refer whomever to lead council.
If there's one piece of advice that's worth remembering, it's to make certain to practice with the council that hired you before testifying. Being prepared will make court easier and less stressful for you, and make you a more effective witness. Don't let them skimp if you don't feel prepared.
posted by bonehead at 7:58 AM on March 5, 2010
Unlike a witness for the fact, your evidence is your opinion. You want to be able to state those in clear language and to be able to defend them without appearing hesitant or tentative. It is ok to pause and collect your thoughts before answering. It is ok to ask to refer to your notes to get specifics right, but do not come unprepared for your subject area. Do bring your expert opinion (which is what the document you are preparing is called, at least in Canada) to the stand with you. You are allowed to use notes, and you should, if necessary. Try to be consistent with your statements. If you say one thing a certain way in your opinion, say it that way in your testimony. Paraphrasing or restatement can introduce ambiguity.
If the questions go outside your area of expertise, don't be afraid to say so. Making definite statements on subjects you are not an expert on (but have some knowledge of) is one of the routes to failure as an expert witness.
The most effective experts are relaxed and know their subject but maintain a certain level of formality. Know how you should address the judge, the opposing council and the council that hired you. This can differ from jurisdiction to jurisdiction and court to court. It may not be what you expect from TV, for example. Remember that your audience is not the opposing council. You should address your remarks to the judge in almost all cases (caveat, never done a jury trial). Remember as well to not speak to anyone but the lawyer who hired you outside of court. If you get button-holed, be non-committal and refer whomever to lead council.
If there's one piece of advice that's worth remembering, it's to make certain to practice with the council that hired you before testifying. Being prepared will make court easier and less stressful for you, and make you a more effective witness. Don't let them skimp if you don't feel prepared.
posted by bonehead at 7:58 AM on March 5, 2010
Anyone have any advice for being extra effective?
Any "gotchas" or concerns I should think about?
In a biology class some years ago, a professor touched on this. He said that it was an interesting and sometimes surreal experience that everyone should go through at least once. In particular, when first called to the stand, it's a contentious experience; the opposing attorney will (usually) be trying to discredit you, and will use whatever tools & arguments they think effective -- this will include the usual gamut of rhetorical techniques, possibly including personal insult. (eg. flamage[1])
At some point, the court will rule as to whether you are accepted as an Expert Witness. Once accepted as an Expert Witness, the entire dynamic changes -- from then on, the questioning will be civil and respectful (IANAL, but I believe this is because being disrespectful to you is, by implication, being disrespectful to the Court (and the Judge)).
So, be prepared for this dynamic. Don't lose your cool in the first stage, and don't relax your intellectual vigilance/integrity in the second (eg. forget any grudges from first stage; don't let the feeling of relief from getting past stage one spawn complacency)
ps. I am not a lawyer; it's possible that this process and/or dynamic does not apply to your court.
[1] flamage, n. Vitriolic argument or ranting, esp. via e-mail or in postings to a newsgroup; [...] OED (DRAFT ENTRY Mar. 2002) {Yes, "flamage" has made it into the OED}
posted by Tuesday After Lunch at 8:08 AM on March 5, 2010
Any "gotchas" or concerns I should think about?
In a biology class some years ago, a professor touched on this. He said that it was an interesting and sometimes surreal experience that everyone should go through at least once. In particular, when first called to the stand, it's a contentious experience; the opposing attorney will (usually) be trying to discredit you, and will use whatever tools & arguments they think effective -- this will include the usual gamut of rhetorical techniques, possibly including personal insult. (eg. flamage[1])
At some point, the court will rule as to whether you are accepted as an Expert Witness. Once accepted as an Expert Witness, the entire dynamic changes -- from then on, the questioning will be civil and respectful (IANAL, but I believe this is because being disrespectful to you is, by implication, being disrespectful to the Court (and the Judge)).
So, be prepared for this dynamic. Don't lose your cool in the first stage, and don't relax your intellectual vigilance/integrity in the second (eg. forget any grudges from first stage; don't let the feeling of relief from getting past stage one spawn complacency)
ps. I am not a lawyer; it's possible that this process and/or dynamic does not apply to your court.
[1] flamage, n. Vitriolic argument or ranting, esp. via e-mail or in postings to a newsgroup; [...] OED (DRAFT ENTRY Mar. 2002) {Yes, "flamage" has made it into the OED}
posted by Tuesday After Lunch at 8:08 AM on March 5, 2010
Yeah, the acceptance of you as an expert can take longer than your testimony itself. There is very little you can do about this process expect keep your shit together and be civil and respectful. It can be difficult to hear an adversarial dissection of your work history and credentials, but it's really something for the lawyers to worry about; there's very little you can do to influence the process. Your part comes when you give evidence.
posted by bonehead at 8:13 AM on March 5, 2010
posted by bonehead at 8:13 AM on March 5, 2010
Previously on the green. I also posted an answer there.
posted by Brian Puccio at 8:50 AM on March 5, 2010
posted by Brian Puccio at 8:50 AM on March 5, 2010
This thread is closed to new comments.
Honestly, $1,000 a day sounds a little on the low side for a daily rate. Keep in mind the arbitrator himself is probably getting around $2 grand a day.
posted by Happydaz at 11:03 PM on March 4, 2010