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How to Avoid the Outrageous Fees of Expert Witnesses

You didn’t see this coming. Your trusty expert witness sends you a bill for $7k for reviewing a new file. You trust the expert spent the time and you’re happy with her work, but $7,000? The expert’s fees are outrageous, but what can you do? You authorized the expert to do the work and her Ivy-League qualifications are impeccable. You have no choice—you have to pay the bill.

But you have no one to blame but yourself. You didn’t get the expert to agree to a budget for her fees and you essentially gave her carte blanche to spend as much time as she wanted.

Experts should know exactly what is expected of them. You should ask the experts to sign an agreement that specifies their responsibilities and our expectations. The agreement does not leave anything to the imagination and if the experts won’t sign, you shouldn’t work with them anyway.

This is our firm’s agreement that sets forth our expectations for expert’s fees, invoicing, and their preparation and attendance at trial.

What We Expect from You

Thank you for agreeing to provide your objective and independent evaluation of the records. We appreciate the opportunity to work with you.

We hope you appreciate that we must budget carefully for the expenses of each case. In order to avoid unexpectedly large expert fees, we created this agreement for the purpose of setting forth our expectations for your invoices and in those cases where you agree to testify at trial, what we expect from you in the preparation for depositions and trial.

This agreement covers the following:

#1:      Budget for the Initial Case Review,

#2:      What to Expect After the Initial Case Review,

#3:      Billing Procedures

If this agreement is acceptable, please keep a signed copy and review it from time-to-time as a reminder of our billing procedures and expectations. We look forward to working with you and appreciate your understanding and acceptance of our policies.

#1:    Budget for the Initial Case Review

We will send you the medical records in the format of your choice (email, Drobox or paper copy) and we ask that you send an email to our paralegal, Corina Skidmore (cskidmore@fishermalpracticelaw.com) with an estimate of your time and anticipated fee for the initial review of the records, i.e., “Will need 5 hours review the records at an hourly rate of $400. I expect to complete the review for $2,000.” The estimate of your fee is the “budget” for the initial case review.

If your budget for the initial review of the records is acceptable, Corina Skidmore will respond with an email to you that accepts your budget and authorizes the work. Please do not begin your review of the records until you receive approval from Corina Skidmore.

Do Not Exceed the Budget Without Prior Approval

Please do not send an invoice exceeding the budget without prior written approval from Corina Skidmore or John Fisher. For example, if the budget is $2k, we do not expect to receive an invoice exceeding $2k, unless you have obtained prior approval.

We understand that there will be occasions that you may under-estimate the length of time to review the records. If you under-estimate the length of time, please send an email to Corina Skidmore with an estimate of the additional time and fees, i.e., “Seeking approval for an additional 2 hours at my hourly rate of $400 to complete the review of the records.” With rare exception, Corina Skidmore will authorize the additional time and expense.

If there are certain records that were not included in the records provided to you, please send an email to Corina Skidmore (ckidmore@fishermalpracticelaw.com) and specify the records that were not provided.

#2:    What to Expect After the Initial Case Review

If you express an opinion that the case has merit and you agree to be an expert witness, there are three distinct phases of work after the Initial Case Review:

  • Review of Deposition Transcripts,
  • Preparation for Trial, and
  • Attendance at the Trial.

We would like to create an estimate of your fees for every aspect of the lawsuit. Similar to the budget for the Initial Case Review, we ask that your time and fees stay within a budget for your review of the deposition transcripts, preparation for trial and attendance at the trial.

Following your Initial Case Review, please provide us with your “Fee Schedule”. The Fee Schedule should provide your fees and hourly rates for the review of records, meeting(s) with the lawyer, travel and hotel fees, and your fee for your attendance at the trial. Your Fee Schedule should specify whether your fees are partially refundable in the event the case is resolved before the retainer fee is spent.

If you do not have a Fee Schedule, we ask that you send an email to Corina Skidmore (cskidmore@fishermalpracticelaw.com) with an estimate of your time and anticipated fee as you continue to work on the case.

Review of Deposition Transcripts

Following the completion of depositions, we will send the deposition transcripts to you via Drobox or regular mail and we ask that you send an email to Corina Skidmore (cskidmore@fishermalpracticelaw.com) with an estimate of your time and fee for reviewing them, i.e., “Will need 5 hours to review the deposition transcripts at my hourly rate of $400 for a total fee of $2k”. Corina Skidmore will respond by email in order to approve the additional time and work.

There are no depositions of expert witnesses in New York State.

Meeting with Lawyer Before Depositions

In almost every lawsuit, John Fisher will meet with you at a location of your choice one week before the deposition of the primary defendant (the “primary defendant” is typically the first-named defendant in the caption of the lawsuit). This meeting will help John Fisher prepare for the deposition in terms of the questions that should be asked as well as the defendants’ anticipated testimony. We expect that you will be thoroughly prepared to discuss the deposition of the primary defendant at the meeting with John Fisher.

Scheduling Your Trial Testimony

We will notify you of the trial date usually 6-9 months in advance. We will notify you of the date that the trial will begin and in most cases, we will ask you to testify on the second or third day of the trial. For example, if the trial begins on January 16th, you will be asked to testify on January 17th or January 18th.

We have limited flexibility in terms of scheduling your trial testimony, and for that reason, you should call us (845-802-0047) ASAP if you cannot testify on any of the dates that we propose for your trial testimony. We can arrange for your travel and hotel accommodations upon your request.

Preparation for Trial

At trial, we expect that you will be thoroughly familiar with the medical records and deposition transcripts. Being thoroughly familiar with the medical records and deposition transcripts is the most important thing you can do.

About one to two weeks before the trial date, John Fisher will meet with you at a location of your choice to prepare for trial. At this meeting, it is very important that you are ready to discuss your anticipated testimony, including:

  • Specific deviations from the standard of care by each of the defendants,
  • Whether the deviations from the standard of care were a substantial factor in causing the injury/death, and
  • Anticipated counter arguments/excuses from the defense.

Please do not come to the meeting with John Fisher if you are not prepared to address these issues.

Attendance at the Trial

After you have been notified of the trial date and you agree to set aside a day to testify, we cannot change the date of your trial testimony. If you cannot testify at the trial (for any reason), you must inform us in writing at least 3 months before the trial date.

Your attendance at the trial is not optional or discretionary. The lawsuit will almost certainly be dismissed if you do not attend the trial.

Bring the Case File to Trial

In New York, Judges require that you bring the ENTIRE case file with you to court. You may not be permitted to testify at trial if you do not bring the entire case file to trial.

The case file consists of all of the documents that you have been provided, including:

  • Medical Records,
  • Deposition Transcripts,
  • Expert Responses and Bills of Particulars,
  • Correspondence,
  • Invoices,
  • Notes

If you are unsure whether a particular document is part of the case file, please bring the document to the trial or send an email to Corina Skidmore (cskidmore@fishermalpracticelaw.com) for clarification.

Please keep in mind that all of the documents in your case file will be inspected by the defense trial prior to cross-examination, and you will likely be asked about your billing records and hand-written notes during cross-examination.

Retain the Case File

Please do not discard the case file until you receive our written permission.

#3:      Billing Procedures

Please keep your billing current within 30 days of the date that you spent time on the case.

Please itemize the time in your invoices, i.e., “45 minutes: review of deposition transcript of non-party witness, John Smith”. We must be accountable to our clients for case expenditures, and consequently, we must be able to show that every expense benefitted their case.

Please Sign Our Agreement

Thank you for your understanding and consideration of our need to carefully budget for the expenses that we incur for expert witnesses.

If the terms of this agreement are unacceptable, we will respect your decision. If the terms are acceptable, please sign this agreement, where indicated, and return it to us via email (cskidmore@fishermalpracticelaw.com).

Dated: January 16, 2017

_______________________________________

James Smith, M.D.

_______________________________________

John H. Fisher

 

 

photo credit: weiss_paarz_photos Gavel and Hospital Chart – Hospital – Law via photopin (license)

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