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Expert Witness Opportunities for Physicians

(What expert witness work is, what to expect & how to become an expert witness)

Expert witness work is a popular side gig amongst physicians for several reasons. First, you don't need a separate skill set.  It's also very flexible in that you can take on cases when you have the time, and decline when you don't.  It can also be quite lucrative, with many physicians making over $500/hour.  That said, most physicians fall into expert witness work when they get a cold call from a lawyer or paralegal, and don't know what to expect.  On this page we'll go over the answers to some frequently asked questions on the group, as well as how to build your side gig as an expert witness.

See the resources section below if you are looking to join our expert witness database or if you're a lawyer seeking an expert witness.

Disclaimer: Our content is for generalized educational purposes.  While we try to ensure it is accurate and updated, we cannot guarantee it. We are not formal financial, legal, or tax professionals and do not provide individualized advice specific to your situation. You should consult these as appropriate and/or do your own due diligence before making decisions based on this page. To learn more, visit our disclaimers and disclosures.

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Resources

If you are an attorney in search of a physician expert witness, please complete our inquiry form to be connected to our expert witness database.

 

If you are a physician who wants to be notified of opportunities, join our expert witness database. Please, note: you have to be a member of our free Physician Side Gigs group to view.

The Expert Witness Fee Schedule: A deep dive into what should be included and how to set rates

How Much Physician Expert Witnesses Charge or Get Paid by Specialty - Average expert witness fees and rates by specialty

Expert Witness 101 - a guest post from one of our members about their experience as an expert witness

Introduction

What is medical expert witness work?

As we physicians know, there are lots of medical malpractice cases.  Although we often associate medical expert witness work with judging causation, liability, or negligence, there’s also lots of other medico-legal issues that arise where an expert witness can weigh in.  Some examples include issues related to medical devices and pharmaceutical products, examining somebody and offering treatment options, or participating in class action lawsuits or occupational hazard related work like mesothelioma cases.  When these cases enter the justice system, the input of a medical expert witness is often sought by the legal teams of both parties.

A medical expert witness’ job is to carefully examine the facts of a case, using medical records and whatever other information is available to them.  Then, using their experience, they provide their opinion on the case, either verbally to a lawyer who is determining whether to take on a case, or by preparing written statements/reports, reviewing relevant literature, and/or providing a deposition or testimony in court.  

 

It is their ethical responsibility to be as objective as possible, and their job to break down the facts in a way that ideally even someone with no medical training can understand, as juries are often made up of those with very little medical background.  

What is the difference between an expert witness and a fact witness?

A fact witness only verifies facts pertinent to the case.  They don’t opine extensively on the case, and are often given a subpoena because of their role in a patient’s care, and verify the sequence of events or the records.  As such, they are required to participate if subpoenaed, and are usually paid minimal in exchange for their time and participation when compared to an expert witness.  Some states will tell you exactly what you will be paid, whereas other states will allow you to ask for an amount that reflects your loss of income. 

An expert witness, on the other hand, gives their opinion or expertise in court, and are paid in a matter reflective of their experience.  Their participation is voluntary, and sought out by the legal teams involved in the case.  Regardless of who hires them, it is the job of the expert witness to provide credible, defensible, objective and unbiased information, as their opinions are used to help guide the court about the facts presented.

How time consuming is expert witness work? How long do I have to do the work?

It’s going to vary a lot depending on how material you have to review and the complexity of the case.  Very few cases go to trial (some figures quote as little as <5%), so in most cases the majority of the work can be done remotely.  Some averages members of the group have quoted are 5 hours for an initial review, 5-10 hours for a report, and 20+ hours for a trial?  Every lawyer will have a different timeline.  Ask them when they first inquire what timeframe they need the work in and make sure you have the bandwidth to do it in that time frame.  It’s better to decline and build good credit for being honest and respectful of their timeline than for there to be tension with deadlines and then not have them call you again.  The legal world is small just like the physician world, and you want the attorney’s office to have a good experience using your services.

Do I have to travel? How much advance notice will I be given, and what if I’m not available for deposition or testimony when they need it? What if they cancel the deposition or trial and I already had the time taken off?

It will depend on how far the cases go.  Since so few cases go to trial, this more often comes up in the context of depositions.  Many times, the attorneys will travel to you for a deposition, but occasionally you may have to.  It is essentially impossible to plan for trial dates when you first engage, and most jurisdictions/judges try and accommodate peoples schedules, although there are always a few that are notorious for being less accommodating.  Most expert witnesses say they have not had problems getting things rescheduled when saying they were unavailable for a particular date.  In terms of cancellations for things you had blocked off, most recommend outlining a policy in your retainer so that you are paid for the time you blocked off outside of a specified cancellation window.

Becoming An Expert Witness

Who can be a medical expert witness?

Most physicians can serve as an expert witness, as they have the required medical expertise.  However, most lawyers are going to prefer an expert witness with experience, who is and has been actively practicing clinically for a few years and up to date on standards of care, and is board certified in the specialty relevant to the case.  Many lawyers will want the physician to have been practicing in the year that the alleged malpractice occurred.  If you are an employed physician, you’ll also want to check and make sure there’s nothing in your contract that either prohibits you from engaging in this work outside of your job, or entitles your employer to a percent or all of your earnings.

I’m not a subspecialist - will there be cases for me?

The short answer is yes, but obviously certain specialties have more litigation than others, and the more niche your expertise is, the more individually sought out you may be.  Surgeons, procedural specialties, obstetrics/gynecology, oncology specialties, radiologists/pathologists, and occupational health related specialties are some examples where there are lots of cases.  However, as specialties such as hospitalists provide more inpatient care and as outpatient physicians are often involved in initial detection/diagnosis, these specialties also have opportunities.  It’s just a matter of getting your name out there.

What other traits will determine your marketability as a medical witness?

There are several practical considerations that may factor into an attorney’s choice to hire you.   These include demand for your particular area of niche expertise, prompt responsiveness (many aspects of litigation are time sensitive), excellent organizational and research skills, the ability to express yourself well and in a convincing manner both verbally and in writing, lack of things in your personal or professional history that can be used against you by opposing council (in fact, many lawyers actually want physicians who haven’t done a lot of expert witness work as there’s less of a paper trail on them), and having the flexibility to participate in depositions and testimony.

What materials should you have if you want to be an expert witness?

The retaining attorney will likely ask you for your CV for review, so you should have one handy.  This is different than your clinical CV.  You should also have a detailed fee schedule and your own expert witness contract that specifies things like retainers, different fees for different services, how and when you’ll get paid, and what you will and will not do.  The clearer your contract, the better.  Many will ask you for a W9 before payments can be made, so if you want to get paid as an entity instead of as an individual, take a minute and get an EIN number for your entity.  Along those lines, you may want an entity that is registered to a UPS box or similar, as your contact information may be listed in legal documents and you may not want people to know where you live.  A dedicated professional email address, business bank account, and business credit card may also be of benefit to keep your personal life separate from the expert witness business, keep accounting easy, and facilitate self employed retirement accounts, etc.

How do I structure my expert witness report?

How to structure your expert witness report

Expert Witness Opportunities

How do you find expert witness opportunities?

Lawyers or paralegals may find you through a Google search, and cold call you.  There are also several databases out there where you can sign up to be contacted by attorneys seeking expert witnesses. We offer a free expert witness opportunity database for members of our Physician Side Gigs online physician community. The downside here is that you have to rely on volume being fed to you, so if you’re eager to pick up your expert witness work, there are several ways to make it easier to find you.  It is helpful to have a website or LinkedIn page that showcases your expertise, so people can find you in a relevant Google search.  Other ways include branding yourself as an expert in a particular niche by doing things like writing relevant articles, a book, or giving related talks.  Eventually once you have a foot in the door, business will bring more business through word of mouth amongst attorneys.  You should also leverage your connections.  Always ask how someone found you, and if it’s through someone else, send them a note to thank them and let them know you’re looking for more business.  Many lawyers are part of listservs, and just as we have our online communities,  swap information on experts. You can also reach out to attorneys in your network, to your local bar association (some people will actually speak at their local bar association meetings), or your county court’s list of available medical expert witnesses. Public courts often have a website where you can actually fill out your contact info and fee schedule to be published online.  Your colleagues may be getting contacted about these opportunities and not be interested, and if they know you are, they could refer the attorney to you.

Can I just testify on behalf of the physician's side?

While you can do this, it may discredit you as a witness.  You should be willing to be objective when necessary.  Many attorneys want to be able to show this by claiming that you've done work for both sides.

Pay for Expert Witness Work

How much can you make as an expert witness?  How do you set a fee schedule?

Again, everyone sets their rates differently depending on their opportunity cost, how niche your expertise is, and other factors of the case.  From what we’ve seen through our expert witness database, most physicians set their rates between $300-800/hour, but there are outliers in both directions. Some people have standard rates for all hours aside from deposition and testifying, whereas others separate out their fee schedule in more detail. Most people recommend asking for a retainer upfront, which covers approximately 5-6 hours of work.  So if your hourly rate is $500, you could charge $3000.  This ensures you cover your costs of initial engagement and will get paid for your time to review the case, and that the overall opportunity cost of engaging in the contractual process is worthwhile.

 

Learn more about how much physician expert witnesses get paid by specialty, with average fees and rates.
 

Within your fee schedule, you'll also want to specify that travel time is included, as well as any other expenses that you want covered. This could include the opportunity cost of blocking time in your schedule and using PTO regardless of how much time the case actually runs, or whatever terms are agreeable to you. See below for an example of an expert witness fee schedule.

Do I need an expert witness contract?

It's almost always in your best interest to have a contract that delineates your responsibilities and the responsibilities of the hiring party, your expectations for when payments should be made, and how you will charge for your work. Remember, you're working with a lawyer, so the more crystal clear all of the stipulations under which you're engaging in work is, the better. You'll want to include things like your hourly rate and how often you will invoice the lawyer, if there's any late fees, and the increments you charge in (10 min or 15 minutes are typical). As anyone who's ever been involved in a legal proceeding knows, court timings and schedules can change a lot due to factors beyond your control (or the case could be settled at the last minute) , so you're going to want to make sure that there are contingencies in place to address unexpected cancellations where you've already incurred the opportunity cost of taking time off or paying for travel arrangements. There are many templates for expert witness contracts that you can find online and tailor to your needs.

As with your retainer, you're going to want to make sure that you are paid before you release your report or testify in court. This will ensure that you are paid in a timely manner. 
 

Problems that a well drafted expert witness contract protects you against
Sample Fee Schedule

Example Expert Witness Fee Schedule

[ENTITY NAME]

[Name] [ Address]

[Phone number or email-address]

[website, if applicable]

Legal Service Fee Schedule (Subject to change)

5 hour minimum retainer of $[ ],  prepaid in full before services are scheduled and confirmed, credited towards services below, and non-refundable once work has commenced.

Case Review (billed in increments of 1 hour)

  • Initial Review of Case : $[ ]/hour

  • Telephone consultation: $[ ] per hour

  • Face to Face Consultation: $[ ] per hour

  • Report writing: $[ ] per hour

 

Depositions:

  • 3 hour minimum, prepaid: $[ ]    

  • Additional time must be paid on the day of deposition, and will be billed at the hourly rate of $[ ]/hour.

  • 50% of the prepayment is due at the time of scheduling, with the balance paid in full by [ ] weeks prior to the scheduled date.  If you or the opposing party cancels the appointment [ ] weeks in advance, a full refund will be made.  If you cancel the appointment with [ ] weeks notice, 50% of the deposit will be returned.  This is no refund for cancellations or rescheduling with less than [ ] weeks notice.

  • Preparation time billed at Telephone Consultation rate in the Case Review section.

Trial Testimony:

  • Local: $[ ]/day for reservation of 4 hours, prepaid.  Additional hours beyond the minimum will be billed at $[ ]/hour.

  • Out of town: $[ ]/day for reservation of 8 hours, prepaid.  Additional hours beyond the minimum will be billed at $[ ]/hour.

  • All time is portal to portal including travel or waiting time.   

  • One day retainer requested [ ] weeks prior to the date of testimony or if out of town, the date of travel.  

  • First day must be prepaid in full, with subsequent contiguous days paid on the day of delivered services in increments of half days with 1 PM being the half day mark.

  • 50% of the prepayment is due at the time of scheduling, with the balance paid in full by [ ] weeks prior to the scheduled date.  If you or the opposing party cancels the appointment [ ] weeks in advance, a full refund will be made.  If you cancel the appointment with [ ] weeks notice, 50% of the deposit will be returned.  This is no refund for cancellations or rescheduling with less than [ ] weeks notice.

  • Preparation time billed at Telephone Consultation rate in the Case Review section.

Other Terms:

  • Please send all records in electronic format.

  • All lodging, transportation, and reasonable out of pocket expenses related to delivery of the service (including copying charts, printing, certifying, etc) are reimbursed at actual cost.

  • Accounts are considered past due if not paid within 30 days and are subject to a late charge fee of 2% per month overdue.

For a deeper dive into the expert witness fee schedule, visit our dedicated blog post on the Expert Witness Fee Schedule, which goes over the structure of the fee schedule and what to consider when setting rates.

Example fee schedule for your expert witness side gig

Other Tips From Our Members

  • Don't document or mention anything that you're not willing to be asked about. Any notes that you take on the files can be the subject of discussion. When in doubt, talk to the attorney you're working with and ask. 

  • Get used to speaking in simplistic terms that both the lawyers and other non-medical people such as those on the jury would understand; think about how you would explain something to your patients or their family members. The attorneys may not retain you if you're not able to explain things clearly. 

  • The opposing attorney may ask you questions about how much you've been paid, if you market yourself as an expert witness, about other cases you've testified in, or other questions to discredit your authenticity, intentions, or credibility in being an expert witness. Be prepared to feel attacked and try to answer professionally and matter of factly without being indignant. That will only further hurt your attorney's case.

  • Don't skimp on reading everything. You can be asked about everything that's sent to you. You charge for your time and go through whatever they send.

  • Make sure you leave time around depositions and testimonies to get there on time and be prepared, and have a cushion if you run late. Lawyers start on time and when people are paying by the hour at the rates that you are charging they will not be happy if you show up 15 minutes late.

  • If you're doing a virtual deposition, make sure you still dress as though you would if it was an in person engagement. Your professionalism is key to your credibility. 

 
 

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