Expert testimony is an indispensable component of modern litigation and often one of the costliest. The hourly rates experts charge can vary widely from a few hundred dollars to a few thousand, not counting costs for such things as testing, surveys, and other special projects providing foundation for the testimony. Expert fees and expenses can escalate quickly even in the simplest of cases. As one federal judge lamented, “[c]ontinuing escalation of expert witness fees and the all too frequent attitude of experts that their fees should be set at the maximum-the-traffic-will-bear is of great concern.” Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493, 497 (S.D. Iowa 1992). Another judge went so far as to characterize skyrocketing fees as “attempts to loot the system.” Anthony v. Abbott Labs., 106 F.R.D. 461, 465 (D.R.I. 1985).
As expert fees increase, so too does the frequency of fee disputes. Fee disputes can disrupt discovery and trial preparation and threaten to derail a case altogether. Often, however, fee disputes can be avoided by identifying where they might erupt and taking straightforward steps to head them off. This article offers advice on how to avoid fee disputes; (1) it identifies the origins of fee disputes and discusses how courts tend to resolve them when they do arise, and (2) it proposes steps a deposing party can take to avoid disputes altogether and to lay the foundation needed to buttress the position taken if court involvement becomes necessary.