No Sacred Cows: Control Expert Witness Costs With Budgets
Other than attorney’s fees, one of the most expensive components of complex litigation is expert consultant fees. In a high exposure product liability case, for example, the attorney may retain experts in various disciplines such as accident reconstruction, toxicology, biomechanics, economics, mechanical engineering, failure analysis, etc. With each expert having an hourly rate well into the three figures, expert fees can add up quickly. In the past, when clients complained of exorbitant expert witness invoices, the typical outside counsel response was, “Well, that’s what he costs.” No more. We owe it to our clients to provide them with predictability and reasonab
leness in their litigation costs. It is our job, as the team member dealing directly with the experts, to control our clients’ outlays by getting the expert to commit to a budget, and then holding the expert to those original cost estimates.
The first step in controlling expert costs is at retention. Upon retaining an expert, the cost-conscious trial attorney should require a budget from that expert as part of the retention agreement. Litigation budgets for experts are best broken down by phases. The expert should be able to provide a reasonable estimate of the time and costs that the expert and his team will incur for the initial review phase of file materials. If a scene or product inspection is required, travel costs, travel time and inspection time can all be estimated with reasonable certainty. The next phase is the actual discovery phase. In this phase, the expert must prepare an expert report or assist in preparing responses to expert interrogatories. In addition, the expert will likely be required to give a deposition. Of course, prior to the report or the deposition, any testing or demonstrations that the expert intends to present at trial must be performed and included in the budget. The final expert budget phase is the trial preparation and trial phase. This portion of the budget involves preparation for trial testimony, attendance at trial, and testimony at trial. Again, estimating travel time and attendance time is not overwhelmingly difficult. If the expert is kept on the stand longer than anticipated, supplemental budgets can be e-mailed to the client from the war room during trial.
Both the client and counsel must understand and be receptive to the occasional need for expert budget supplementation based on unforeseen developments. Budgets are by definition best estimates based on the preparer’s experience in similar situations. Reasonable clients understand that sometimes events take unexpected turns, and additional unforeseen work is required. Accordingly, the trial lawyer must have an understanding with his client and with his expert as to the circumstances under which amended or supplemental budgets may be submitted, and the factors that will be considered on whether to approve them. With a trusting and open relationship, client and counsel can work together to control litigation costs while ensuring a successful outcome.
As an expert witness for the last decade, I concur that we are, in many cases, an exorbitant expense. I have been witness to two opposing experts, each charging $600+ per hour to sit in front of an electron microscope, examining the same few metal fragments and arguing for two solid days about what they were viewing. After 16 hours, they wrote reports that negated one another.
My group offers a viable alternative to expert witness excess that we call Forensic Business Pathology®. Our approach has proven to save huge amounts of time and cost by finding the root cause of product liability or organizational negligence, quickly and through discovery.
While other experts are pawing over charred remains our experts are performing an analysis of the company that manufactured the subject product. Mostly from specific documents obtained through discovery, we can do an audit of the business, manufacturing and quality processes resulting in compelling evidence that the organization did or did not exercise a reasonable standard of care that should have prevented the alleged disaster or accident. Mainly through document audits, we examine the infrastructure of the organization accused of product defect and/or negligence. This process gathers evidence that determines if they were or were not careless in their management, policies, standards, practices, training, inspection or testing processes. From this research, compelling, structured narrative is generated that maps an objective series of events leading to the alleged incident and its consequences.
Our reports are unique in that they are scientifically irrefutable instead of learned conjecture. We've had cases settle the day after court testimony, while we were waiting to be deposed and 1 week after submitting discovery requests.
We would be happy to discuss the basic approach with litigators at no charge.
Tom Taormina was a Quality Control Engineer at NASA’s Mission Control Center for 14 years. He was part of the Apollo 13 recovery team and heard the words “Houston, we have a problem” first hand. His 40-year career has been dedicated to hands-on proactive business excellence and he has written ten books on quality and business process improvement. Since 2001, he has become a preeminent expert witness in product liability and organizational negligence litigation.
http://taorminagroup.com
http://legalquality.blogspot.com/
To get a sense of actual expert fees, this article contains several fee tables based on actual cases:
http://expertpages.com/news/expert_witness_fee_practices_report_2009_1.htm