Boundary dispute: Myself, surveyor for east lot owner,defendant; and surveyor for west lot owner,plaintiff, agree on lot corners and boundaries; disagreement is over "mowed yard, shed, and dog house". Plaintiff claims misrepresentation by seller (a third party), and adverse possession of "mowed yard" against my client. If I am deposed by sellers attorney, where should I look for payment? I'm thinking $75/ hour, $500 advance fee. What if said attorney subpoenas me? Is that like an order that I must testify for free? Other parties involved are mortgage Co. who need to protect their collateral.
When you are deposed, I don't think that or the following testimony involves any payment. They could claim that paid testimony would naturally be in favor of the "highest bidder".
I don't know about in your area, but in mine "adverse possession" involves 7 years of "open and notorious" acts of possession. I'm surprised they are using that argument if the statutory time has not evolved under such conditions.
Are you listed as the expert witness? I charge for depositions the same as being in court, including preparation time. $180/$200 per hour 4 hour minimum, unless it's off cape, then it's 8 hour minimum.
Expert witnesses get paid, period. I've been subpoenaed before and they didn't want to pay me, I didn't review the folder, supply them with a copy of the plan, etc. They realized the plan backfired when they wanted to prep my testimony beforehand. "Testimony, what testimony? I was subpoenaed and showed up"
Subpoenaed? Then you are a FACT witness. 35 bucks.
You leave your professional opinion at home. You don't have to prepare for this.
Professional Opinion? Ah, now we are talking money!
N
New contract. you are not working under the same agreement by which you did the survey unless it was specified at that time that you would be testifying as an expert in pending court action. The new contract should be with your client's attorney.
The deposing attorney is responsible for paying for the expert's time during testimony. Your client (your survey client's attorney) is responsible for your prep time, travel, and any stand by time. The deposing attorney should provide payment for your time in deposition at the beginning of it. Depending upon your payment terms with your client (your survey client's attorney), you will either get a separate check from him to cover the other time & expenses, or you will get the full payment from your client (your survey client's attorney) and you will sign over the check from the deposing attorney to your client (your survey client's attorney).
How the fee structure is done varies quite a bit, but many charge their normal rate for prep, travel, and standby time, and a rate right around double their normal rate for time testifying in depo or at trial (some may be around 1.5 x normal rate, some 2.5x or more. I know one surveyor who charges $450/hr and gets it without argument), all with a 1/2 day, full day, or set $ amount minimum.
What Nate says is the way I've always understood it.
Subpoenas
Whether called as expert or fact witness, I've always received a subpoena as the notice to appear. The subpoena should state in what capacity you are called to testify.
I was once called as a fact witness. Two hours round trip, an hour and a half standby. First few questions were pretty innocuous: "Who hired you?", "What did you find at this location?", "Did you set any benchmarks in the work area?", etc. Then I was asked whether or not one of the monuments properly marked the property corner.
"Are you asking my professional opinion on that?"
"Yes. You appear to have accepted this monument as a property corner. Is the monument the property corner?"
"Well, Mr. ________, I was called as a fact witness and the answer to that question calls for my expert opinion."
The judge picked up quickly, didn't have a problem with me raising the objection (since my client's shyster was just sitting there hoping I wasn't bright enough to stop when the nature of the questions changed), and declared me an expert so that I could answer the question - fee instantly went from a flat $35 to about $800 for the afternoon. But I had to make the point that I was being asked a question that required my expert opinion to properly answer. If I hadn't hesitated to answer and made the point that the question was beyond a factual question, my fee probably would have remained $35 whether or not I answered the question with my opinion.
If they intend to ask you anything about land surveying, property lines, encroachments, "how far from the line is the dog house", etc, you are an expert witness, and should be paid. If are they are going to ask you about how tall the grass was on the certain date you were there, or what was said between neighbors, then maybe you are fact witness that doesn't get paid.
When working for the Federal Justice Department in 2013, the maximum hourly rate for an Expert Witness is $400/hour. (I charge $350/hour,and I've been doing this stuff since 1977. I started at $75/hour back then.)
You may charge for prep time, travel time, testimony time, standby time, etc. If you do not list it on your invoice, you will not be paid.
Most insurance companies (and government agencies) prefer it if you charge the SAME rate for whatever you do. It simplifies their accounting, and nobody cares what it is you charge as long as you list it out and you can justify.