I know there's been a few discussions on this topic, but I'd like the see some fresh opinions; I'm a little nervous...it's my first time...
I'm not so concerned about my testimony; the survey was a retracement of a 2 lot plat, done in 1983. It's commercial property and the issue is; the neighbor put up ecology blocks to block people from using parking spaces on my clients property. They have to drive over the neighbors property to get there. There is a 40' easement, but that only allows access to 1 of the parking spaces. The neighbor had a surveyor mark the line and he placed these blocks on his side of the line, although he did place a set of blocks in the easement, blocking the parking space that can be accessed through the easement. Before he put the blocks up; people were accessing these parking spaces, through the neighbor's property, since before 1983.
My concerns are:
Am I an expert witness or just a witness?
The attorney asked that I make myself available on the 20th, just in case they need me. Do I bill for this?
Do I bill at an hourly rate with a minimum for everything I do, related to the case?
I've learned a lot about how to CYA from you guys; I'm just a not sure how to make sure I'm compensated for it.
TIA,
Dougie
I'll go out on a limb here just to see how close I get to what the knowledgeable people say.
If you are only asked what you saw ("Were there obstacles to using the parking spaces?") you are a fact witness with no compensation requred by law.
If you are asked things that require professional skills and judgment ("Were those obstacles within the easement?) you are an expert witness and should be compensated at a decent rate, with a half-day minimum every time you are asked to show up, whether or not you are called.
Like Bill, I can't speak from experience. But I think you need to ask the attorney what level of witness he wants you at, and you need to discuss fees up front. If he wants you as a "witness of facts", and then they start to ask you for your expert opinion, you might need to stop and ask if they want expert testimony.
Radar, welcome to the club! It has been my experience that every court testimony is different, depending on the judge and the attorneys that are involved, so the answers provided below are based on my experiences.
"Am I an expert witness or just a witness?"
This will depend on how the attorney that representing your client plans to use your testimony. Given that you are a licensed professional and will be answering questions pertaining to your survey, I would think you would be utilized as an expert witness. Ask the attorney you are working with this question before the court date, they should have an answer.
"The attorney asked that I make myself available on the 20th, just in case they need me. Do I bill for this?"
Absolutely. My opinion of this is if I am "available or on call" it doesn't matter if I am waiting in a witness room at the court house or at my office. This should be known by all parties prior to the court date. I have had some attorneys that said never mind after they found out I would be charging for my time.
"Do I bill at an hourly rate with a minimum for everything I do, related to the case?"
I do. Anything I do preparing for testimony is billed at an hourly rate. Court testimony is a flat fee per day, with "available or on call" status being 75% of the per day fee. The daily fee is charged if I have to go the courthouse and wait or if I actually testify. This should also be known to all parties prior to the court date
(An attorney I have done a lot of work for during my career, to include expert witness testimony told me 20 years ago that surveyors don't charge what they should. He told me he has an hourly rate and a court appearance rate. If he stands in front of the judge, he charges the appearance rate, whether it is for 10 minutes or 8 hours. Currently he charges $250 an hour for normal work and $2,000 for court appearance. I have testified on 3 cases in one day for him, he billed $6,000)
I would suggest contacting the attorney with any questions you have. Explain to them that you haven't testified in a case before. All attorneys I have dealt with will gladly answer any questions you have since they want you to be comfortable in your testimony as this will help them with their job. The attorney on the other side may try to throw you a curve, but that's their job. I had an attorney that was supposed to be a friend of mine try to convince the judge I was the worst person in the county, but when the judge released us for lunch, he offered to buy my lunch. Don't take anything personal.
I hope this helps you some. Good luck.
Joe W. Byrd, post: 431346, member: 10015 wrote: Radar, welcome to the club! It has been my experience that every court testimony is different, depending on the judge and the attorneys that are involved, so the answers provided below are based on my experiences.
"Am I an expert witness or just a witness?"
This will depend on how the attorney that representing your client plans to use your testimony. Given that you are a licensed professional and will be answering questions pertaining to your survey, I would think you would be utilized as an expert witness. Ask the attorney you are working with this question before the court date, they should have an answer."The attorney asked that I make myself available on the 20th, just in case they need me. Do I bill for this?"
Absolutely. My opinion of this is if I am "available or on call" it doesn't matter if I am waiting in a witness room at the court house or at my office. This should be known by all parties prior to the court date. I have had some attorneys that said never mind after they found out I would be charging for my time."Do I bill at an hourly rate with a minimum for everything I do, related to the case?"
I do. Anything I do preparing for testimony is billed at an hourly rate. Court testimony is a flat fee per day, with "available or on call" status being 75% of the per day fee. The daily fee is charged if I have to go the courthouse and wait or if I actually testify. This should also be known to all parties prior to the court date
(An attorney I have done a lot of work for during my career, to include expert witness testimony told me 20 years ago that surveyors don't charge what they should. He told me he has an hourly rate and a court appearance rate. If he stands in front of the judge, he charges the appearance rate, whether it is for 10 minutes or 8 hours. Currently he charges $250 an hour for normal work and $2,000 for court appearance. I have testified on 3 cases in one day for him, he billed $6,000)I would suggest contacting the attorney with any questions you have. Explain to them that you haven't testified in a case before. All attorneys I have dealt with will gladly answer any questions you have since they want you to be comfortable in your testimony as this will help them with their job. The attorney on the other side may try to throw you a curve, but that's their job. I had an attorney that was supposed to be a friend of mine try to convince the judge I was the worst person in the county, but when the judge released us for lunch, he offered to buy my lunch. Don't take anything personal.
I hope this helps you some. Good luck.
"with "available or on call" status being 75% of the per day fee."
Why would you do this?
Tom Adams, post: 431345, member: 7285 wrote: Like Bill, I can't speak from experience. But I think you need to ask the attorney what level of witness he wants you at, and you need to discuss fees up front. If he wants you as a "witness of facts", and then they start to ask you for your expert opinion, you might need to stop and ask if they want expert testimony.
In fact, I would suggest about a 4-hour meeting with him a day ore two prior...
Jim in AZ, post: 431349, member: 249 wrote: "with "available or on call" status being 75% of the per day fee."
Why would you do this?
Because if I am "on call" it means I have to be able to appear at the courthouse in a certain amount of time, usually within 30 minutes, and also be dressed for the performance (coat and tie) which means I have to stay in or around my office. I don't spend every day in the office or all day if I start out in the office. This prevents me working on other jobs. If I am going to have to arrange my schedule to accommodate someone else's, i feel I should be compensated.
RADAR, post: 431340, member: 413 wrote: I'm not so concerned about my testimony; the survey was a retracement of a 2 lot plat, done in 1983.
You definitely want to be concerned about your testimony. The answer here is an answer to a factual question. Yes, you performed a retracement survey of a 1983 2-lot plat. Followup questions such as, "What is a retracement survey?" or "What is a 2-lot plat?" require an expert opinion. If you're not being retained as an expert, then you can't answer.
RADAR, post: 431340, member: 413 wrote: It's commercial property and the issue is;
This answer requires an expert opinion as it's outside of your direct knowledge.
RADAR, post: 431340, member: 413 wrote: the neighbor put up ecology blocks to block people from using parking spaces on my clients property.
Did you see the neighbor put up the blocks? How would you ascertain the motive? Again, an expert opinions based upon evidence you've obtained.
RADAR, post: 431340, member: 413 wrote: They have to drive over the neighbors property to get there.
Could be a factual response based upon your direct observation.
RADAR, post: 431340, member: 413 wrote: There is a 40' easement, but that only allows access to 1 of the parking spaces.
Definitely an expert opinion based upon investigation/review of documents, etc.
RADAR, post: 431340, member: 413 wrote: The neighbor had a surveyor mark the line and he placed these blocks on his side of the line,
Hearsay as a fact witness. You (I assume) didn't observe the conversations, weren't there when the line was marked or the blocks were placed.
RADAR, post: 431340, member: 413 wrote: although he did place a set of blocks in the easement, blocking the parking space that can be accessed through the easement.
Could be a factual response if you directly observed it. However, expressing an opinion on the location of the easement would require research and analysis to formulate an expert opinion.
RADAR, post: 431340, member: 413 wrote: Before he put the blocks up; people were accessing these parking spaces, through the neighbor's property, since before 1983.
Again, hearsay. Unless you have had direct observation since before 1983. Otherwise, it's an expert opinion based upon examination of evidence.
RADAR, post: 431340, member: 413 wrote: My concerns are:
Am I an expert witness or just a witness?
You definitely want to get this question answered up front and soon. If they want to subpoena you as a fact witness, they need to make it official with a subpoena so you can collect your $17.50 check (or whatever your legislators have deemed you worth) from the clerk of court after you've testified. If you're intended on being an expert witness, then you should have been disclosed to the other party prior to trial, allowed to formulate the opinions you are prepared to express, and been requested to provide a fee schedule for your services along with a list of your authorship of articles, trials/depositions you've participated in, experience, training, etc. Once you've been disclosed, the other side should have an opportunity to decide whether they would like your opinions expressed in the form of a report or if they would prefer a deposition. You need to familiarize yourself with the rules of civil procedure https://www.courts.wa.gov/court_rules/?fa=court_rules.rulesPDF&groupName=sup&setName=CR , especially Rule 26(5). You'll also want to be familiar with the rules of evidence https://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=ER , paying particular attention to Rules 601, 602 and Titles 7 and 8.
RADAR, post: 431340, member: 413 wrote: The attorney asked that I make myself available on the 20th, just in case they need me.
Sounds like they're trying to circumvent the cost of retaining an expert witness and circumventing the discovery process. I won't play that game with attorneys. If they even think they need you to testify, I'd want to know what opinions they'd like me to formulate and to compensate me for my time taken to formulate them. If they want my testify, I need to know the nature of the testimony, fact or expert, then be allowed to prepare.
RADAR, post: 431340, member: 413 wrote: Do I bill for this?
Do I bill at an hourly rate with a minimum for everything I do, related to the case?
If you're retained as an expert, the court requires you to be compensated. Depending on the method of discovery, they may require the opposing party to pay a portion of your fee. (see CR 26(5)(c)) When playing with the big boys in court, expect big boy pay (double your rates!).
And, have fun!!
[USER=413]@RADAR[/USER]
Have you been deposed?
Have you been subpoenaed?
Do you have a written request to appear as an expert witness?
If none of the above you have no obligation to appear in court. However, if you are requested/subpoenaed to appear as an expert witness make sure whomever made the request receives written notification of your hourly rates as an expert witness as well as acknowledgement (in writing), of acceptance, and financial responsibility for your testimony.
If you elect to appear as a ??general? witness you will receive zero compensation.
Good luck man. 😎
Dougie,
All good advice here. If the court is Downtown allow plenty of time for parking or take metro. You don't want the stress of parking your land yacht down there. Take something to read or do, it is likely that you will have to sit around for a significant amount of time.
If you have been deposed or have filed a Declaration, review it and be consistent with what was stated previously.
Finally, the judges that I have been before have been very nice and accommodating, more so than anyone else in the room.
This is why I love this board and the people who post here; you guys are the greatest!
Thank you Wendell; for providing this forum. You and Angel are the best!
JBStahl, post: 431363, member: 427 wrote: You definitely want to be concerned about your testimony.
I didn't mean that to sound like I wasn't concerned; I think I've read enough on this board and elsewhere, to know what I will be up against and how to handle myself. Thank you JB; for affirming that; this is what I will expect, if I'm called to take the stand.
Cheers! :clink:
Joe W. Byrd, post: 431362, member: 10015 wrote: Because if I am "on call" it means I have to be able to appear at the courthouse in a certain amount of time, usually within 30 minutes, and also be dressed for the performance (coat and tie) which means I have to stay in or around my office. I don't spend every day in the office or all day if I start out in the office. This prevents me working on other jobs. If I am going to have to arrange my schedule to accommodate someone else's, i feel I should be compensated.
Agreed! But your rate is far too low...
Being on call...........
You must sit down and review the survey and prepare yourself for testifying in court, that is billable time whether you appear or not.
Keep time of your conversations with client, attorney or others involved in the case.
Do not forget all the hours that you have been kept from your normal activities due to being available and/or appearing and not being able to leave the area to meet or perform services for other clients that you have to reschedule appointments.
Present your invoice to the client's attorney as soon as possible after the case has ended and a decision has been made.
In the event the very first question you are asked is: Do you know why you are here today?
You are expected to respond with something along the lines of: Hell if I know.
Do not expand that thought to include pointing at the attorney and declaring: That SOB asked me to make my self available today, whatever that means. I asked a woman in a bar one time if she was "available" and I woke up on the floor with a broken whiskey bottle nearby and a big knot on my head.
RADAR, post: 431385, member: 413 wrote:
I didn't mean that to sound like I wasn't concerned; I think I've read enough on this board and elsewhere, to know what I will be up against and how to handle myself. Thank you JB; for affirming that; this is what I will expect, if I'm called to take the stand.
I didn't intend to imply that you weren't concerned, Radar. I've known you long enough to know that you take your work quite seriously. I just wanted to make sure that you focused your attention on the particular parts of your testimony. Being called as a fact witness, there are few questions you can actually answer. Being declared an expert there are few you can't answer with the proper investigation, preparation and disclosure prior to trial. Don't let the attorney get away with not properly compensating you for your preparation time.
