How To: Expert Witness Rate Structure
When a new expert witness contacts us and is interested in a matter, one of the earliest questions they ask Round Table Group is, “What should I charge?”
What Should I Charge?
It’s hard to answer the “What should I charge?” question because so many things can affect it, including:
- What is your field of expertise? (for instance, orthopedic surgeons generally charge more per hour than human factors experts)
- Where you are located? (experts in New York tend to charge more for the same expertise than experts in Iowa)
- How many years of experience do you have? Have you testified before? (very experienced experts tend to have a higher hourly rate than new experts or experts that have not reached the testifying stage previously)
- How busy are you? How willing are you to be inconvenienced when a case suddenly wants to take up all your time?
- Do you love the thrill of a good debate? Or does that make you anxious?
- and even how much do you want the gig (some experts charge less for cases they are particularly interested in)
We recommend not worrying too much: Charge an amount you’re comfortable working for and do a good job. If you ever have the opportunity to do it again, you’ll know a lot more, so adjust as needed. If you have a colleague who’s been an expert witness, asking them what they charge and how they picked that number will probably provide a good sanity check.
Should I Charge A Project-Based Or Hourly Rate?
We usually suggest an hourly rate.
Compared with most jobs, being an expert witness is way on the “boom or bust” end of the spectrum. Cases can, and do, settle at any time, and the work is often a lot all at once and then nothing for months. Often, it will be difficult to predict how much work will be needed for a case… even a thorough estimate can end up dramatically off-base. An hourly rate protects the expert should the client end up expecting a lot from you.
That said, project billing is common in some industries. Some experts do a mix.
As an example, Jon Albert describes his use of a retainer for the initial work on the matter:
Typically, I do not charge hourly for expert work. Occasionally I will charge if there is some special work required. I will charge a retainer for which I go through all phone calls and Zoom calls. I read that FedEx box of materials they send me and that takes it up to doing the expert report. I do not charge for hours for that. I anticipate that in advance, and I include that in a retainer. So, the attorney’s do not feel they are being overcharged, or the hours are being padded because I do not want to even go there.
[…] What I do is charge a flat rate for a deposition. If a deposition is canceled, let’s say they set it for March 1st, and on March 12th they say, ‘We are going to postpone it until June.’ Well, you are going to pay me for the March 1st deposition, because I have already put in a week of preparation. Understand that when or if the case settles, and cases settle days or hours before a deposition, you are going to pay me for the deposition. I am sharing this with people so they do not walk away thinking, ‘I did all that work, and I will not get paid because the deposition did not happen.’ You have to look out for yourself.
Professor Robert Romano sets up his hourly and project-based rates differently:
That is probably one of the most difficult things to learn. That comes with experience. I have gotten to the point where I am going to want hourly rates for all my preparation work, and my report and all that stuff. I want a fixed rate if you are going to ask me to testify[…] If you want me to testify at a deposition, it is a flat fee. If you want me to testify at trial, that is another flat fee. Let’s say I fly to San Francisco to do the deposition, or it will go to trial and settles at the trial, I am guaranteed the fee. I did not put those hours in because I did not testify, but I prepped all the time I was there and was ready to go. At least I am going to get compensated for my time.
Other experts are strong believers in hourly billing for all types of work. Jonathan Bernstein and Jean Acevedo both find the work too unpredictable for project billing. Jean explains:
With expert witness cases, my experience is that the amount of time and expertise that is needed is all over the map. I have not been able to find an equitable way to bill a project fee, So, bill hours for everything.
Dr. Chuck Easttom also supports this idea and goes a little farther:
Not only do I bill hourly, but it is always the same rate. I have seen some experts that build higher for testimony. That is a mistake because it looks like you are charging for your testimony, and I am not charging for my time. My time is worth X amount, regardless of how I spend it.
At Round Table Group, we’ve found that most experts bill hourly, and the most common ways are either to have one rate for all work (a la Dr. Easttom) or to have a rate for consulting work (sometimes defined as in-office work) and another rate for testifying (sometimes expanded to all out-of-office work). Some experts will set up a third rate for travel.
Other Considerations
As a last piece of advice on how much to charge, Romano notes that, like with everything else, supply and demand play a role:
Leverage depends on how badly they want me. You feel that out in that initial interview. Is it just somebody they want to hire because the other side hired three experts, so we need to hire three experts? That kind of thing. Or is it that I have written in this area, and I have good expertise in this area? They want me because I am the person that can sway that jury, then you have a little more bargaining power. I will go back and forth until we are both comfortable.
If you are interested in being considered for expert witness opportunities, sign up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses, starting with those we already know. Contact us at 202-908-4500 for more information or sign up now!