What you need to know about being a
Physician Expert Witness

If you are an attorney in search of a physician expert witness, please contact us here to be connected to our expert witness database.

If you are a physician who wants to join our expert witness database, please sign up via our group database, located here.

Expert witness work is sought out by many physicians as a side gig for various 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.

There is also a sample fee schedule.
 
  • What is medical expert witness work?
  • Who can be a medical expert witness?
  • What other traits will determine your marketability as a medical witness?
  • I’m not a subspecialist - will there be cases for me?
  • What is the difference between an expert witness and a fact witness?
  • How time consuming is expert witness work?  How long do I have to do the work?
  • 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?
  • How much can you make as an expert witness?  How do you set a fee schedule?
  • How do you find expert witness opportunities?  How do lawyers find you or how do you market yourself?
  • Can I just testify on behalf of the physician's side?

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.  

 

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.  

 

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.

 

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 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.

 

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 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 paid very minimal in exchange for their time and participation.  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.

 

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, most physicians set their rates between $400-900/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. 

  • See sample fee schedule below.

 

How do you find expert witness opportunities?  How do lawyers find you or how do you market yourself?

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, including our free one here.  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.

Sample 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.

 

Disclosures/Disclaimers: This page contains affiliate links, which may support us at no cost to you. We may charge companies that use our expert witness database for our own time in getting involved, and that would be disclosed to you if we contact you with a potential opportunity.  We are not in the business of providing personalized financial, tax, legal, investment, or personal advice, and specifically disclaim any liability, loss, or risk which is incurred as a consequence, either directly or indirectly, by the use of any of the information contained on this page. This page is not intended to be a substitute for meeting with professional advisors. If legal advice or other expert assistance is required, the services of competent, licensed and certified professionals should be sought, who can help assess the appropriateness of any decisions in light of each individual’s specific goals, experiences, circumstances, and financial status.  Please do your own research and due diligence prior to making any decisions on the basis of anything you learn from our interactions or platforms.