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Thoughts on Superior Court Order Regarding Payment of Expert Witness Deposition Fees

Apr2

Not long ago, I found myself involved in a discussion with fellow trial attorneys on the subject of a recent and, in my opinion, incorrect decision made by a D.C. Superior Court judge regarding the deposition fees paid to expert witnesses. I’ve included the entire text of the court order so you can read it for yourself, followed by my comments on this controversial decision.

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LASHAWN ENGLISH, Plaintiff v. DISTRICT OF COLUMBIA, et al., Defendents.

Case No.: 2010 CA 003016 B, Judge Gregory E. Jackson, Calendar 6

ORDER

This matter is before the Court on Plaintiff’s Motion for Protective Order and Defendants’ Opposition thereto. Upon careful consideration of the motions and case records as a whole, Plaintiff’s motion is granted in part.

Plaintiff scheduled a deposition of Defendant’s expert witness for December 20, 20111. Plaintiff told Defendants’ attorneys and the expert that the deposition would last no longer than 2 hours. Defendants told Plaintiff that although the expert charges $250 per hour, he requires a pre-payment with a $1,000 minimum, regardless of how many hours are spent at deposition. Plaintiff argues that this fee is unreasonable and excessive given the relative-simplicity of this case. In turn, Defendants contend that their expert’s fees are consistent with other similarly situated experts and that the pre-payment helps to defray costs associated with preparing for depositions. Moreover, Defendants point to the fee structure of Plaintiff’s expert which requires a $500 minimum pre-payment.

The Court agrees that, in this case, a $1,000 minimum fee for 2 hours work is excessive and unreasonable. However, the Court also understands Defendants’ point that the prepayment is in consideration of the preparation time needed for a deposition. The Court finds that the Plaintiff’s expert’s fee structure represents a reasonable balance between these competing concerns. Accordingly, it is hereby ORDERED, that Plaintiff’s Motion for a Protective Order is GRANTED IN PART; and it is further ORDERED, that Plaintiff shall pay a $500 minimum pre-payment fee for the deposition of the expert in addition to the normal $250 per hour rate.

SO ORDERED.

1 Defendants submitted their opposition on December 29, 2011, after the deposition was scheduled to take place. Since they have not indicated otherwise, the Court presumes that the dispute over paying the expert remains outstanding.

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Having been asked by some of my peers to comment on this ruling, my opinion is as follows:.

I have written several briefs on this topic and obtained more than one court order requiring the defense to pay for the preparation time of my experts. It is in the rules and case law. However, it goes both ways, and the defense can make the plaintiff pay for the prep time for their experts.

Therefore, it sort of balances out. However, in a typical trial, the defense has to pay for the plaintiff’s preparation time first, and many times cases are settled after the depositions of the plaintiff’s experts.

Personally, I did not agree with the judge’s decision on this because a deposition is open-ended, and the medical expert would have to cancel an entire afternoon’s worth of patients (four hours). However, at the time of deposition, the defense could say they only want to take a one-hour deposition, or they want to take a six-hour deposition. The plaintiff’s expert must be available, but will only be paid for actual time used.

In the order above, the expert charges a $500 pre-payment fee for planning, and then a rate of $250 per hour.

I believe the plaintiff’s attorney should tell the defense in advance how much time they want to reserve for the deposition, pay in advance, and stick to it. If they decide they want more time, they can also reserve that time in advance.

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