Expert Witness 101
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Expert witness work can be a lucrative and fun side gig. I never considered being an expert witness until I received an intriguing email from an attorney. On a whim, I replied to the email asking for more information. After meeting with him and learning more about the case he was representing I agreed to serve as an expert witness. I have found this work to be engaging and I hope to share some of the tips and tricks I have learned as I continue to build my expert witness practice.
When you agree to serve as an expert witness you are agreeing to provide your expertise and opinions in a criminal or civil trial. Your job is to explain the medical evidence of a case in a way a judge or jury can understand. Cases are varied but frequently involve medical malpractice, personal injury and pharmaceutical companies. You should consider what types of cases and which side of the case you would like to work on. Do not agree to serve as an expert witness unless you feel completely comfortable with the subject matter.
Prior to agreeing to serve as an expert witness you should have a clear understanding of the scope of review the lawyer is expecting. Expert witness work can involve any of the following; medical record review, report writing and testifying in a deposition or at trial.
Most physician expert witnesses require an upfront retainer, at least part of which is non-refundable. Retainer fees are based on demand and experience and can range widely. $2000 to $3000 is a standard starting rate. Rates for chart review and report preparations average $300- $400 per hour. Average rates for deposition and testifying at trial are slightly higher at $400 to $500 per hour. Many experts will require a minimum charge for trial. Remember you will be missing at least one day of work to testify at trial and potentially more if travel is involved. You should set your minimum fee high enough to make up for your lost income. You should also consider a cancellation fee for trial or deposition. There is a handy, easy to use calculator for fees available here: https://www.theexpertinstitute.com/expert-witness-fees/.
You should consider having a written agreement along with your retainer that details your fees as well as when payments are expected. This written agreement should have clear expectations about your fees and timeliness of payments. You should consider if you want to bill monthly or at specified intervals. For example, some experts will not release the written report until they have been paid.
You should bill for all the time you spend on the case. This includes time spent reviewing records and medical literature but also phone calls and emails related to the case. Lawyers are used to this type of billing but we physicians are used to giving away our advice for free. It is common practice to bill in 10 or 15 minute increments. Your bill should include a brief description of the work you were doing but your bill is admissible as evidence at the trial. You can be asked about your bill so you might not want to be too detailed in your descriptions of service provided.
Getting started in expert witness work requires a bit of marketing on your part. Not everyone has the experience that I did of having an attorney contact you out of the blue. You want to increase your exposure as much as possible. Start by updating your Linked In profile with your areas of expertise and that you are interested in expert witness work. Consider calling local law firms introducing yourself and your areas of expertise. Reach out to any others you know who do this kind of work. You could consider listing in expert witness directories such as those run by SEAK or The Expert Witness Institute. Finally, set up a webpage so lawyers looking for expert witnesses can find you.
Expert witness work can be a considerable time commitment. You should make sure you have an adequate amount of time to review records and write your expert report. My most recent case took 40 hours for medical record review and report writing. Usually this work happens on a deadline and you need to be willing to put in time at night or on the weekends to meet the deadline. Your report includes not only your summation of the case but also summation of literature that supports and refutes your opinions. Your report becomes part of the official record of the case and you will be asked about your report in depositions and at trial. You should be mentally prepared to have your opinions and even your credibility as an expert witness challenged in court. Make sure that you have adequate peer reviewed scientific evidence to back up your opinions.
Above all, be confident in the opinions you put in your report. There is a minimal risk of liability from expert witness work. Generally, expert witness work is protected from law suits however an expert witness can be sued from her retaining attorney, so called “friendly” attorney. In these instances, the suing attorney must prove they would have won the case if the expert had not been negligent. These types of cases are very hard to prove. You could consider insurance coverage to protect your assets and pay legal fees in the remote case of a lawsuit against you.
Expert witness work can be both a rewarding and challenging way to supplement your income. With a little bit of preparation you can be successful in building your expert witness practice.
Nancy Hammond is a neurologist and burgeoning expert witness.