In many trials, especially products liability lawsuits,
expert witnesses are called to explain aspects of a case that a lay person
(including the judge) may not understand.
Most often each side will hire its own expert. Same facts, same circumstances, different
opinions.
Surprised? I guess we
shouldn’t be. Experts may charge very
high fees to investigate, write a report and testify. If an attorney is putting out that kind of
money, it will happen only once if the opinion is not what the attorney is
looking for.
When I was a practicing attorney, I had a small probate
matter with a modest home that needed to be appraised in order to be sold. I contacted a local realtor, who was more
than happy to help. “Tom,” he said, “I
want you to know that I’m going to appraise this property fairly. My only question to you is: Do you want it fairly high or fairly low?”
I knew this realtor well, and I knew that he was
kidding. But one has to wonder about
many of the experts.
Plaintiff’s attorneys are often criticized for contingent
fee arrangements. That is, if the
plaintiff loses the case, he owes no attorneys fees, but if plaintiff wins, he
pays his attorney a percentage of the recovery – often 1/3.
This type of arrangement can result in big paydays for the
plaintiff’s attorney as well as their client.
But, on the other hand, it is the only way people of limited financial
means can afford to retain an experienced and respected trial attorney to
handle his claim.
Expert witnesses, on the other hand, are paid no matter
what. Attorney retainer agreements will
provide that, while the unsuccessful plaintiff will owe no fees if they lose,
the expenses will remain the obligation of the client. As a practical matter, if the client doesn’t
have the ability to pay, the attorney may end up paying those costs.
I had a lengthy products liability case over which I
presided involving a major automobile manufacturer. Plaintiff called six expert witnesses. The Defendant called four. Just ONE of the Defendant’s witnesses’ firms
had been paid over $4 million from 1995 to 2002 to testify in similar cases for
Defendant!
I wish there would be more attention paid to the very high fees
often paid to expert witnesses when discussing lawsuit abuse. I also wish I were wise enough to figure out
how the parties could get the expert evidence they needed without being incurring
huge expenses in the process.
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Next Week: Thanksgiving
