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How to Select and Hire an Expert Witness?

Russell J. Kendzior

By Russell Kendzior

While in law school, few if any attorneys ever learned (1) how to go about hiring the right expert witness for their case; (2) how and when to employ their services; and (3) how much to budget for their expenses. In the end, you must ask yourself how much value retaining an expert brings to your case. Often, retaining an expert doesn’t make good economic sense. But on a high-value case, it almost always demands an expert opinion be provided to the court.

So how do you know who the right expert is? While there are many resources available, I recommend networking with your fellow attorneys. After all, your chances of picking the best expert for an important case demands more than just a listing in an expert witness directory, right?

10 Warning Signs

According to the Expert Institute, here are some signals that an expert witness may not be the right choice:

1. If the specialist spends a disproportionate amount of time as an expert witness, beware!
2. The specialist requires a fixed retainer far in excess of the amount of time they will need to review materials.
3. Beware of a specialist who is hard to reach.
4. The specialist is not presentable to the jury.
5. The specialist has no testifying experience.
6. The candidate advertises as an expert witness – hard to do in the age of the Internet.
7. The expert witness only testifies for the defense or the plaintiff.
8. Professional, disciplinary actions brought against the specialist.
9. Disparity between expert’s initial remarks and testimony.
10. The candidate does not have the same specialty or sub-specialty training as the defending party or the opposing party’s expert.

In my more than 18 years of experience I have met a lot of expert witnesses and found that they tend to fall into one of three categories:

#1 – Those Who Charge a Lower Hourly Fee

Often these experts will bill for longer hours, blowing your budget. Additionally, they will bill for hours of online “research,” on which they will base their opinions. This should be a red flag that they may not possess the expertise they said they had. My view has always been if you hold yourself out as an expert why do you have to do hours of Internet research in the area you claim to be an expert in?

#2 – The Expert Who Charges an Up-Front Retainer

Generally, they bill against this retainer at a higher than average hourly rate. Generally these experts are employed in their field of study and will take your case only if there is a significant financial benefit for them to step away from their primary job.

#3 – The Self-Proclaimed Expert

This expert is the paid gun that – for a fee – will take any case and claim expertise in a wide range of subjects. These experts are often involved in personal injury cases where they may be hired on an automobile crash one day, a slip and fall the next and an industrial machine case the third. They tend to be jacks-of-all-trade, but masters of none!

How Much to Pay

Expert witnesses operate much like attorneys billing on an hourly basis. Because their fees vary, the age-old rule of “you get what you pay for” does apply. Hiring because of a lower rate may cost you in the end if the expert fails a Daubert challenge and is excluded at trial.

The Expert Institute recently polled over 5,000 experts nationally. They found that the national average hourly fee for an expert to review your case is $351. The average cost for a deposition is $459. And, if the expert is called to trial, the average hourly rate jumps to $488 per hour.

Testifying experts in the state of Texas rank fourth nationally in compensation and bill at an average rate of $518 (medical and non-medical experts combined). Non-medical experts often do not possess the credentials of a medical expert and command a rate approximately 30 percent less than medical experts. Non-medical experts average billing for casework ranges between $252-$280 per hour while the hourly rate for casework of a medical expert (excluding nursing) ranks between $423-$494. The study revealed that 55 percent of all expert witnesses considered themselves neutral while 28 percent only handled plaintiff cases and 17 percent only represented defendants.

In the end, selecting an expert witness is both an art as well as a science. Balancing education and credibility with courtroom presence can be a challenge. In many cases it simply comes down to whose expert is the best. So be careful in your selection process, it may be best to talk to other attorneys who’ve retained their services. Hiring an expert witness requires a bit of expertise!

For more information, visit www.tractionexperts.com.