How to Handle the Expert 'Money' Question at Trial

You need experts to prove cases. It's just a fact. If you're going to litigate, you're probably going to need an expert, at least when it gets to damages, if not on liability too.

However, when there's a battle of the experts, or your opponent has eschewed the use of an expert, how you handle or rebut questions about expert witness fees can be critical for the credibility of your expert(s). You know it's always coming because there's something just so damning about expert witness fees which are usually exorbitant (and especially so when in line with prevailing market rates).

So You Retained the Most Expensive Expert

When your expert states their hourly rate, or otherwise describes just how much they're being paid by you (your client), you can sometimes see the wind being knocked out from beneath the jury's wings. You're a lawyer and should be able to recognize the face of someone's hopes who have just been dashed.

Not all experts are created equal, and some of them are truly pieces of work. And while you may want to avoid revisiting this issue on a redirect, you probably should as the members of the jury aren't likely to forget it. People tend to remember those sorts of details better than they should, and all of a sudden will become experts at seeing inferences.

When (not if) you're in that boat, you can do some damage control by having your expert back up their high hourly rate, but don't go down this road if you're not prepared, as it can spectacularly backfire. Ask questions about how much work the expert has, how long they've been in the industry, their qualifications, how disruptive and costly it is for them to travel for trial, basically, give them the platform to justify their rate.

Can Your Expert Defend Their Rate?

When retaining experts, it can truly pay off to force them to defend their rate to your verbally, and take good notes while you do it. Ask questions you would ask at trial about their rate before you, or your client, signs the retainer. This can both save you time and money, as depo and trial prep will be a few minutes shorter as you'll have already gone over the money questions once, and experts always end up charging clients through the nose for depo and trial prep.

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