How Much Should an Expert Witness Charge?

An ongoing question for expert witnesses is what fees an expert witness should charge in proceedings. It leads to many related questions: Should an expert witness charge on an hourly basis? If so, how much should that hourly rate be? Or maybe charge a flat fee? What if the cost of the expert engagement overruns.

These are all difficult questions, and one to which there is likely no simple answer.

Obviously an expert should not charge too little – it will be uneconomical to work and questions may be asked as to why that expert is charging so little. Conversely, an expert should not charge too much – they will likely lose the work (or future work) and a court may ask questions as to how the cost can be justified.

But how can an expert determine if they are too expensive? Or is the expert charging too little? In this article we will cover a few points to be considered to give experts a much better understanding of how much they should be charging, and how they can best structure their fee arrangements.

We should also note at the outset that this is written for an Australian audience. This is where we are based and we typically work with Australian experts. However, most of these principles will be readily applicable or transferrable to experts in other jurisdictions, and in particular Common Law jurisdictions, such as England and Wales, New Zealand, Singapore, Hong Kong, the USA and Canada.

Difficulties in Expert Witnesses Quoting Fees

At the outset one issue for expert witnesses in providing quotes is the inevitable uncertainties over the project they are working on. Litigation is inherently unpredictable, and it is very difficult to quote on a task where it is not clear what exactly that task will be, how long it will take, or if the scope of the task will change. This is the nature of the adversarial legal system – the parties will inevitably have different considerations as to what should be done in the proceedings, the steps to take and (among other things) the nature of the expert evidence. Moreover, the court itself will invariably have a different view again, making this process inherently difficult.

In some cases there is a market standard fee on which experts’ quotes are generally based. This is typically done in more routine or regular matters, and this can save the expert (and parties more generally) time and cost in determining fees, while allowing some scope for tweaks or amendments if required by the engagement.

However, in more bespoke or unique cases this is not so applicable. Luckily the scope of any expert evidence will largely be settled between the parties and the court at various case management hearings prior, and therefore there is perhaps less scope for uncertainty as to the evidence to be provided, but there is always the risk of such unknown issues or scenarios arising.

Some Tips When Quoting Expert Fees

Proportionality of Expert Witness Fees to the Quantum of the Case

One factor to consider when quoting expert witness fees is to compare the likely fee you will charge as an expert to the quantum of the case. Obviously, a case with a large claim in damages, and potentially even a counterclaim will justify a larger expert fee. Conversely, a smaller quantum of damages will make it more difficult to justify a significant fee for expert evidence, meaning that the expert fees may have to be reduced proportionately.

Expert Fees versus Other Factors in the Case

Other, less tangible factors can also affect the fee that expert witnesses should be charging in legal proceedings. For example, does the matter involve specific or complicated work on a specific or unusual area of expertise? If so, this may justify increasing the expert fee.

Additionally, if the matter involves a particular question of law, fact or expertise this may also justify an increased level of expert fees beyond those proportional to the quantum of the case (above). This is because of the importance of litigating the matter notwithstanding the cost of doing so.

Other factors unique to the expert can also be considered. For example, if the profile of the case is such that it will likely garner the expert increased recognition or profile this may be a basis on which the expert’s fee can be reduced accordingly. The same can be said if the work will likely lead to further or ongoing engagements for that expert witness.

Additionally, the work involved may simply be more interesting or professionally enjoyable to the expert witness. This may be a reason to reduce the expert witness quote – after all – it is much easier to be paid less when it is for something you enjoy!

Your Experience as an Expert Witness and Area of Expertise

Obviously, the greater an expert’s experience in giving expert opinion as an expert witness, the greater the ability for that expert to command a higher price premium. Conversely, an expert with less experience as an expert witness may not be able to charge such a premium in their fee estimate.

The same can apply if the area of expertise is very niche – it is reasonable to pay more to the expert(s) who can opine in this area, and the parties will be more willing to pay this fee (and courts more willing to accept the expert’s fees). Whereas, if the area is something on which numerous experts could opine, simple market competition will mean the expert fees should be less. By way of example, many construction experts could provide a report on defective building in a standard residential house, however few could provide one specifically on the concrete used in that construction (assuming this is in fact an issue in the case).

Comparable Professional Fees

When preparing your quote as an expert witness, looking at what other professionals involved in the case are charging is a good yardstick or comparator. The solicitors are the obvious starting point. Lawyers’ charge out rates obviously vary greatly between city/state and firm. A solicitor in a top tier Sydney practice could be charging well over $1,000 (+ GST) per hour. Other, more junior staff would be on slightly less again as you go down the hierarchy, with a paralegal on as much as say $400. Typically rates would be similar in Melbourne, and slightly lower outside these centres, but it does vary. Partners in smaller firms might only be charging $400 per hour in Sydney, and less again for staff.

Barristers again vary greatly depending on location and skill. Kings Counsel in Sydney/Melbourne in exceptionally large commercial matters may be charging similar to the law firm partner, possibly more (say $1,200 per hour, or $12,000 per day). Junior barristers’ rates on that case may range from $400-$800 per hour ($4,000 to $8,000 per day), depending on experience.

More standard would be say $800 per hour for a KC in a normal commercial matter, with juniors around $400-$600 per hour. Rates again will be lower for other types of matters (family, criminal law etc and for different cities/states).

Another very good comparator would be your competition. How much do other experts charge for similar reports? Unfortunately this sort of commercial information is not often readily available. Look online though – you might be surprised as to how much you can learn. Some experts may quote their expert rates online. However, even if they don’t quote their rate as an expert you may be able to get some idea of other rates they charge, such as for consultancy work. This rate for other work, such as consultancy work, should be relatively comparable to what they charge as an expert. For example, if an accountant offers advisory services to companies for $300 per hour, there is a good chance their rate as an expert witness is also $300 per hour. Alternatively, if your profession is collegiate you may be able to ask some of your colleagues for a rough idea.
If you are engaged through an agency they will likely either take care of the fee arrangement for the client, or at the very least assist you in working out your expert fee pricing and structure. This is one of the advantages of working with an agency, although they will of course take a commission for their work.

Another option is to ask your instructing solicitors for a guideline rate. They will usually be more than willing to suggest what they think is appropriate and reasonable.

Court Rules on Recoverability of Costs

Typically costs in a proceeding must be fair and reasonable in all circumstances (see for example the Legal Profession Uniform Law (NSW) section 172). This will usually involve an assessment of whether the costs are proportionately and reasonably incurred, and proportionate and reasonable in amount. The court is able to look at various factors in determining the fairness and reasonableness of the costs, such as complexity of the matter, work involved, urgency, time spent, quality of work etc. Thus experts should consider these tests and factors when determining their costings for a matter.

In some cases, legal costs may also be regulated/proscribed at law. For example, the NSW Schedule of Costs for Legal Services in Workers Compensation Claims proscribes costs of legal practitioners’ attendance of $250 per hour for attendance at conference, and between $125-$300 per hour (or part thereof) for professionals (experts) attending court to give evidence.

Experts should note, however that these are court allowed costs (i.e. standard, or party-party costs), and are not costs which will actually be charged to the client – the actual costs charged to the client may be a further 40-50% higher than any court allowed costs. They still serve as a good benchmark for an expert to consider what rate they could potentially charge in such matters.

Some Tips on Expert Quotes and Estimates

With all the above in mind, here are some further considerations you should have when determining fee quotes and estimates for a proceedings:

1. Feel free to give estimates in ranges – either in time or in price range (or both). Eg. $10,000 - $15,000 or 20 to 30 hours.
2. Quote for specific tasks/work deliverables, with further fees to be quoted in due course. For example, $10,000 for the report, with further fees to be quoted.
3. Clearly set out of the scope of work quoted.
4. Make the quote or estimate limited – for example, the quote could be conditional on an opinion being provided which does not include these specific aspects, a consideration of a specific topic, or specific procedural steps. Note these additional steps as further costings can be quoted at the time, or in due course if they become required.
5. Set out the assumptions on which the quote is based. For example, if the quote assumes only one consultation to perform assessment of an individual, or the quote assumes the engaged to occur within a specific timeframe or by a specific date, say so.
6. If in doubt, ask your instructing solicitors what a reasonable amount or structure would be. They will usually be more than happy to talk through the quote with you.

Expert Fees and Duty to the Court

Additionally, experts should be aware of their ongoing obligations to the Court in the quoting of their fees.

This manifests itself in two ways. Firstly, experts should be aware that they can be cross examined on their fees in court. There is nothing wrong with an expert charging a party for their time and expertise, but experts should be aware of how to deal with questions in relation to their fees in any cross examination.

This leads us to the second point which is that experts should not have a fee arrangement which is conditional upon the outcome of the case. Experts have a primary duty to assist the court, and an expert which has such a conditional fee arrangement will likely have a more vested interest in assisting their client at the expense of their duty to the court. This would in turn lead to some very direct and effective attacks on the expert’s credibility. As such, we recommend experts avoid contingency or success fees in their engagements, so that their remuneration is not affected by the outcome of the proceedings.

Conclusion

As with the role of an expert itself, quoting or estimating how much you should charge as expert witness is a skill which you can work on and improve. In some cases there will be a market standard rate which will serve as a good guide. In other cases, particularly where the engagement is more bespoke or detailed, quoting expert fees is (like being an expert) a matter of skill and experience.

There is unfortunately no definitive answer to this question, but there are a series of practical pointers and measurements you can use as a benchmark to determine your fees as an expert witness. These can include:

• The proportionality of expert witness fees (and indeed other fees) to the quantum of the case, including any counter claims.
• Other factors in the case, such as case profile, level of work involved, scarcity of other experts/uniqueness of skills and level of professional interest in the subject matter.
• Comparable professional fees, such as solicitors and barristers’ fees.
• The various court rules on recoverability of costs. These will be a good baseline, although note they are often significantly less than the rate actually charged to the parties).
• Remember to think through the quote carefully and perhaps provide it in stages or in a range.
• Remember, your primary duty to assist the court. Be prepared to answer questions on your fee arrangements in cross examination, and make sure to avoid fee arrangements which are conditional on the outcome of the proceedings.

By using the above factors, expert witnesses throughout Australia, and indeed experts more widely, will be better able to determine how much they should be charging for their engagements, and be able to better structure their estimates and quotes. This will in turn allow for a more mature and sophisticated expert witness practice and will hopefully in turn lead to further and continued engagements as an expert witness.