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Expert Witness Professional Services Agreement
eapls2708 replied 7 years, 3 months ago 22 Members · 25 Replies
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I was called as an expert witness for the first time when I was still quite wet behind the ears. Small town life has one huge con, you know everybody. I knew the judge, both attorneys and both clients. Being young and dumb, I quoted the attorney that hired me a fee per hour with no minimum. On the day of court, they called me first and I was only on the stand for 15-20 minutes (eternity on the witness stand). When it was all said and done, the attorney was nice and rounded up to 30 minutes as my billable time for the appearance. Fool me once… Before he retired, that attorney almost had a heart attack when he asked for another quote for testifying. He said “Aww, you are charging more than I am!!!” On that first court appearance, the opposing attorney really tried to make me mad by playing on word definitions like “was it a road or wasn’t it?” and when I answered, he tried to contradict me. I was fuming but I held it together. He shook my hand after court and whispered “you know that wasn’t personal”. As a young buck, I tolerated more of that sort of thing. I’ve been called seven times to testify. The biggest thing I can offer is don’t get nervous. Oh, and if you can’t dazzle them with brilliance, baffle them with bullsnit.
Freedom is just another word for nothing left to lose -
Don’t tell the court what the law is.
Bad – “I determined the line is here because the law says…”
Good – “I determined that the line should be here because in previous situations, with the same circumstances, the courts have told us…” -
My agreement ( I can’t find a copy it has been so long) avoids use of the term “expert witness” but I believe it does use the term “professional testimony”. An “expert witness” is a definition saved for those that are qualified at the discretion of the judge in any particular case.
I can’t think of a time that any survey was denied the ability to bill a client because the court determined he was not of an expert status that applied to the case….but why give the lawyers a chance to gig you on a technicality?
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When working at another company, I was subpoenaed to a deposition by the other side in an encroachment/trespass dispute. Fortunately, I was able to get paid for the time by my client, but after that I added a clause to the standard contract language to cover that possibility in the future. Something along the lines of “If, as the result of work performed under this contract, the surveyor is required to testify as either a fact witness or an expert witness at a deposition or in court, even if called by a party in opposition to the client, client agrees to pay the fee for “Court Testimony” as shown under the hourly rate schedule. Time spent in preparation, waiting to testify, and travel, as well as while actually providing testimony will be included as billable hours. A minimum of 4 hours time will be paid on days the surveyor is scheduled to appear at locations outside the surveyor’s office.” That’s a bit choppier than the clause was actually written, but you get the idea.
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Lots of good advice on how to testify, but not much on how to contract for the service or who to contract with.
I have to disagree with A Harris. Although you have a duty to defend your survey, that’s not what’s going on here. Your survey, your opinion regarding the spatial relationship between the fence and use and the “record” boundary location (which can be and has been several times a complete separate topic of discussion on this forum) as shown on your map, and ideally, your knowledge and availability to explain specific details and answer questions both about what you found and how you arrived at your opinion are being offered as evidence by one side to support their position.
Your map is supposed to, and I assume it does show sufficient information that another surveyor can determine what you found, how you used it, and the methods & reasoning you used to determine the boundary location. You are being asked to testify not because there is an accusation that you surveyed wrong (i.e. to defend your survey), but because a map depicts the result5s of a technical process that a typical judge or jury knows little or nothing about. That makes it easy for the opposing side to misrepresent of confuse the meaning or significance of the info you showed. Your primary value is to clarify where the opposing side tries to obfuscate and possibly to explain why, in your opinion, your conclusions are more consistent with the facts and the law (see James Fleming’s post on how to address matters of law) than the survey presented by the opposing side.
It could also be that both surveys show very similar results but depict them differently enough that to the untrained eye, they appear to show very different results. If that’s the case, then your job is still to clarify and explain the facts you looked for, the facts you discovered, and your use of the facts in arriving at your conclusions. In other words, no different.
Although ideally, you would have performed your survey and prepared the map with the possibility of it being entered as evidence in a boundary dispute at court, performing the survey, preparing and filing the map are completely separate services from preparing for court and testifying.
Those who have established track records of being experts within their field will typically charge 2 to 3 times their normal charge out rate for expert witness services. A surveyor who has not established a track record of expertise over and above normal day to day practice on relatively unremarkable projects in terms of complexity or difficulty should still charge 1.5 to 2 times their normal rate for time on the stand or in deposition and their normal rate for preparation and standby time (the time you spend sitting in or near the courthouse waiting to be called to the stand). Some with well established advanced expertise charge the higher rate for standby and preparation as well as for actual testimony.
Most who do or have done this type of work will have either a half day or full day minimum charge at their testifying rate for dates they are scheduled to testify. I’ve also seen provisions for minimum charge at the standby rate if they are asked to be available in case they need to be called but are dismissed for the day.
Your contract for expert witness services might be with the client landowner, but typically and better is to have this contract with the attorney. There are several advantages to contracting with the attorney: 1) Generally, any work product and communications produced in preparation for the legal proceedings will be covered by attorney confidentiality; 2) CA, and I suspect many other states have specific statutes requiring the attorney to pay retained experts promptly, and if they are found to be in violation of this, they will get into deep trouble with the State Bar; 3) The attorney is more likely to know what is expected from you in terms of preparation where the landowner may be more hesitant to pay prep time since he’s already paid you for the survey; 4) If your client is a cheapskate and his attorney a little or more on the shady side, if you don’t send the contract to the attorney and if it doesn’t have terms that would be typically expected, they may try to take advantage of you by getting you on the stand, getting the expert opinions they need, and then leaving you with no easy avenues to get properly compensated.
You thought you were working extra services on your contract with the client, but both custom and the law see it as an entirely separate service to be performed under a separate contract unless your original has specific provisions to address the possibility. Your client says “I didn’t sign a contract to pay you as an expert. You were supposed to do that with my attorney” or “You didn’t tell me it was extra, that should have been included in the survey price.” And the attorney says “We didn’t have a contract. You’ll have to address that with your client.” Since you had no contract with the attorney, you will have a very difficult time collecting from him. If you didn’t have a separate agreement for expert services with your client, you will have a difficult time collecting from him unless you can show provisions to cover it in your original contract and that you were clear with your client that it would be considered as extra services prior to providing them.
Someone said something about contracting as a “professional” witness rather than an “expert” witness. That’s advice that should best be evaluated in light of your state’s statutes covering witnesses. In California, and I believe in most states, the decision of whether you will be accepted as to testify as to your professional opinion, and thus be an expert at trial is made by the trial judge alone. In those jurisdictions where there isn’t a statutory definition for “professional witness” as opposed to “expert witness”, and no certification other than whether the judge in any particular trial thinks that you have reasonable qualifications and reasonably sound like you know what your talking about, the term “Professional Witness” can have negative connotations that you are a hired gun who will testify favorably for whoever pays your fee. If there is a statutory distinction, or if “Professional Witness” is a commonly used term in your jurisdiction, it would carry no such negative connotation.
I hope that JB Stahl or others who have done this more than I have come around and comment to make things clearer. In the “who to contract with” paragraphs above, I was actually describing my first experience testifying as an expert. I didn’t get totally stiffed, but I only got a fraction of what I should have and it wasn’t easy getting that. I’ve since learned a great deal from folks on this forum and the old POB forum, and from looking into CA’s statutes regarding expert testimony and those covering the business transaction aspects of being retained as an expert.
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