by James Chapman
Use this Budget tool to simplify planning.
Why You Need an Expert Witness Budget
When preparing a litigation budget, expert witness fees are often a big cost-overrun. The reason is that budgets are not established with experts at the outset of the engagement. Instead, counsel will “ballpark” the total expert costs into a single line-item based on personal experience with experts hired in similar cases. Without confirming availability or rates, a litigation budget set this way is based on false expectations.
Use the budget to secure experts at the outset
Contacting experts at the outset of the case to establish the budget insures they are available and do not have conflicts. It also allows for client approval of rates and expected costs. Attorneys who wait to hire experts until the expert witness disclosure deadline is approaching do so at their peril. They may find themselves scrambling to locate experts who are available on short notice or are forced to retain an expert who is less than ideal for the case.
Experts can help with the litigation roadmap
Just as a litigation budget is an excellent tool to develop a roadmap (and pricing) for each phase of a case, expert witnesses can provide useful insights when developing the budget. Maybe it is about preserving key evidence, insights about the opposing party (or its counsel), even potential opposing experts based on their own experiences. This information can be used to help prepare for future challenges that may arise in the case.
Importantly, the budget helps set realistic expectations around the true cost of litigation. Far better that the client/payor has level set the expectations on real case costs at the outset of the litigation than a nasty surprise in the middle of the lawsuit.
What about pre-suit experts?
In serious incident losses, liability experts are frequently hired to participate in pre-suit investigations, including equipment inspections and site visits. Budgets are rarely established at that point due to the urgency of finding out how the accident happened. But if the incident appears to be headed toward litigation, it is an opportune time to establish the budget, identify the extent of required support, and lock in rates.
While most attorneys do not try to negotiate rates with experts, some clients may. For example, insurance companies have a lot of negotiating power. They may cap hourly rates, require a discount for travel, and refuse to advance a retainer. When working for a carrier, be sure to address this at the outset. Experts can then choose to accept them or turn down the engagement.
Should counsel prepare the expert witness budget?
Federal Rule 26(b)(4)(c)(1) on expert discovery, as well as the rules of many states, allows discovery of matters “pertaining to compensation” of expert witnesses. While that arguably does not include budgets, preparation by counsel in consultation with the expert allows for the assertion of work product and attorney-client communication privileges insofar as it is developed and provided to the client.
For a downloadable Expert Witness Budget Calculator with built in formula click below.