The Cost of Expertise: How to Set Prices for Your Witness Services
By Noah Bolmer
Experts have a wide range of options for structuring rates, from a simple hourly which covers everything, to extremely granular schedules. While we’ve looked at travel expenses and retainers, this time, we’ve asked our guests on Engaging Experts about their preferred pricing structures.
Setting your Rate
When getting started, setting your initial hourly rate can be challenging. This can be doubly tricky if you weren’t actively pursuing expert witness work and receive a call out of the blue. Linguistics expert Stanley Dubinsky takes a simple approach:
If you work for a business, you get paid about half the labor cost. If you work for McDonald’s and get paid $15.00 an hour, McDonald’s has to lay out $30.00 for every hour you work, for overhead and everything else that they have to do. If I’m hiring myself out, then I am the proprietor and the employee and I will double my university hourly wage.
Battery and chemistry expert Dr. Seth Miller agrees with the “double employee rate” calculus, adding an annualized method:
On rates, I’ve been a consultant since 2008 [. . .] I’d been used to charging on an hourly basis. Now, I’ve been doing it for fifteen-plus years, and when I talk to folks who’ve never done consulting before, the first thing I tell them is, “You’re going to charge twice what your hourly rate would be as an employee, because that covers your health care and overhead. They could let you go at any time.” There’s some benefit to getting flexibility. The rule is if you earn $100,000 a year, you charge $100.00 an hour as a consultant.
While this is a great starting point, there are numerous factors that will impact what you are able to charge, including the size of your niche, experience in your field, geography (i.e., New York tends towards higher rates than Iowa), and certifications / education (among others). Talk to other experts in your field to add datapoints and choose a rate that is achievable.
Simple Hourly Structure
Most experts stop there. Simple hourly billing is, by far, the most common expert witness rate structure. Dr. Miller has one rate, with a caveat for delays:
There are people who negotiate a different rate for being on the stand and not. I don’t. You’re hiring me, so no matter how much stress I’m under, I’m going to charge you the same. That’s the way I work. I don’t charge differently for a deposition. I don’t charge differently for time on the stand. [. . .] The one term I’ve had to negotiate or put in front of folks now at the outset is if there’s a trial, and you need me to be somewhere, and testimony gets delayed—then I get paid a daily rate for sitting in a hotel wherever it is.
Computer science expert Dr. Chuck Easttom agrees, noting “Not only do I bill hourly, but it is always the same rate. I have seen some experts that bill higher for testimony. That is a mistake because it looks like you are charging for your testimony, not charging for [your] time. My time is worth X amount, regardless of how I spend it.”
This is a valid concern. Even when you have a simple billing rate for all work, the amount is fair game on the stand, and experts must be ready to answer potentially uncomfortable billing questions. Internal medicine and pyrotechnics expert Dr. John Steinberg recalls dealing with this head-on with a bit of levity:
I am testifying in a workers compensation case in a rural area of Maryland. [. . .] A guy was suing his employer—he was drinking beer and smoking marijuana and he drove the company truck off the road and got injured. He wanted a workman’s compensation claim, his blood alcohol level was 0.22, he was positive for marijuana and beers were rolling around in the truck. [. . .] [The defendant’s] poor attorney decides he wants to impeach—which means to cast doubt upon your testimony or credibility. [. . .] No matter how embarrassing the question is, you go over this with your retaining counsel prior and answer truthfully. He says, “How much do you charge—you’re being paid for your testimony?” You answer, “I am being compensated for my time” [They ask] “How much do you bill?” At the time it was $300 an hour. He’s like, “Members of this civil jury are working for like $18, $5, $8 an hour.” So, I say “Look, [I’m] a professor from the medical school up in Baltimore, MD, [and I charge] $300 an hour” And then he says, “And you charge that rate from the minute you left your office to the minute you return.” [. . .] So, I simply said, “Yes sir.” Then he says, “How much longer do you think that will be?” And I said, “Right up until you stop asking me questions.” And Bam! One of the jurors cracked up laughing.
As long as your rate is reasonable for your experience level and practice area, do not be afraid to answer compensation questions head-on.
Priority Service Upcharge
Even when experts charge a simple hourly rate, they may charge extra for very tight deadlines. Dr. Miller reasons:
The expectation of the folks who bring you on is that you are going to be instantly available and they’re going to be your top priority. In that regard, I would tell people that you charge for priority service the same way a machine shop would. If you need to have a part built or a sign printed, and you want to skip the line, you pay for that. At a machine shop or printer, you might pay twice as much to skip the line. That’s the way you think about charging as an expert witness. You charge twice as much as your normal hourly rate, and what the buyer gets for that is your undivided attention whenever they need it. [. . .] If you are a good expert in a sought-after field, you can set your own rates to whatever it needs to be, but thinking of yourself as a machine shop is not an awful way to start.
Mechanical engineering expert David Smith has a similar billing structure:
[W]e internally call [rushed engagements] the “Join the Circus Clause”. This comes back to those cases where we get a call and it’s like, “I need a report in a week. I messed up and thought this was going to settle. It didn’t and now I’m in a crunch. Can you help us?” Normally, we like to say yes to helping attorneys; we like doing this sort of work. But when we get projects on such short deadlines and we already have work planned out for that week—if we’re going to help, it’s going to require a significant amount of overtime. There’s a phrase that says, “Not my circus, not my monkeys” when someone brings you a problem that isn’t your problem. So, with this part of our contract, it basically says if you bring us a project that has a report due in less than 10 working days, we can charge one-and-a-half times our normal rates until that first report is issued, and then it will drop back down to normal rate.
When accepting a rush or priority job, make sure that you are able to schedule it around any existing engagements. It is okay to say no if you are unable to fully commit.
Minimum Billing
Unfortunately, an engagement is not a guarantee of payment, unless you build minimums (or non-refundable retainers) into your contract. Attorneys might hire a particularly sought-after witness simply to force a settlement, or to remove that expert from those available to the other side. Similarly, unforeseen circumstances such as a plaintiff dropping the case, or new evidence rendering the case moot can end an engagement before it begins.
Some clients may even want to engage an expert very briefly—for only a matter of hours. Mr. Dubinsky uses a daily minimum to prevent this: “If someone wants my time and my expertise, they should at least want it for a day. In other words, if you call me up, get me engaged in your project, want me to do something for you, and hire me for 30 minutes—that’s like a short-term motel. I’m not checking into the motel with you by the hour. I’m not doing that. If we’re going to have a date, we’re going to have a date—and it’ll be at least one day.”
Activity Rates and Flat Rates
Beyond a basic hourly rate, some experts have specific rates—or even flat fees—for specific activities. This might be an upcharge or a discount, depending on the circumstance. Handwriting analysis expert Sheila Lowe explains:
I have colleagues who charge the same regardless—I don’t. I feel like that’s really not fair, so I charge one hourly rate when I’m doing remote testimony [. . .] Or, you know, going downtown or distance is a different rate. For depositions, I have a flat rate [. . .] and the same for court because it’s more stressful.
Attorney and IP professor Mark McKenna occasionally uses flat fee survey experts in his trademark work:
Experts are widely varied—it depends on what [they] are doing. I have found in general that survey experts usually have an hourly rate, but if they’re doing a survey that they’ve done before, they have a clear sense of what the survey will cost. They might give you a flat rate for doing the survey. Then, an hourly rate for deposition, trial work, and that kind of stuff.
The more granular your rates are, the more important it is to set expectations at the outset and have solid communication. Nobody likes surprise upcharges, so make sure that all parties understand any potential fees (and discounts).
Whether a simple hourly rate or more granular approach, choose a billing structure that works for you, and isn’t overly burdensome on your clients. Pick a rate commensurate with your experience, consider a minimum for unforeseen circumstances, and ensure that you are on the same page as your attorney before getting to work.
For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!