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Question: What is the best way to prevent expert fees from spiraling out of control in malpractice and injury cases?


You have to get the expert witnesses to agree to a budget from “day one” that you start working with them.  If you don’t establish a budget and get the expert to agree to work within the budget, you risk getting taking to the bank by excessive expert fees.

When the expert agrees to work on the case, most lawyers send the retainer agreement and authorize the expert to start working on the case.  This is a recipe for disaster. With no limits or caps on the expert’s fee, your expert witness will have carte blanche to take advantage of you and your client…and he will.  Pretty soon, you will get bills from the expert that are astronomical and you curse the expert and his insanely high fees.

So, here’s what you do.  When you first retain the expert, you set a budget for the expert fees.  When I retain a nurse expert to review a nursing home case, I set the budget at $1,250 for the initial case review. First, I ask the expert if the initial retainer is sufficient to cover the cost of the case review.  If it’s not and the expert gives a decent explanation why, I may authorize a larger budget. But you have to establish a budget from the get-go.

Before I authorize any work, I ask the nurse expert to sign a letter asking for the expert’s commitment to get my written permission if he intends to submit an invoice in excess of the initial retainer check.  Additionally, the letter states that, even after I authorize the expert to continue working on the file after the initial retainer check has been exhausted, the expert must continue to get my advance approval to submit additional bills as each invoice reaches an increment of $1,250.

I have never had an expert refuse my request to work within a budget.  But if your expert won’t agree to work within your budget, this is not an expert you should work with anyway. Expert witnesses must respect your budget constraints.

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