April 01, 2013

Experts: Check Please?

Maria Rodriguez

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Experts are ubiquitous. There is hardly a high-stakes case that doesn’t feature at least one expert witness. In a way, it’s reminiscent of the town where the lone lawyer had no business until a second lawyer moved in. Where there’s one expert, soon there will be two.

Federal Rule of Civil Procedure 26(b)(4)(E)(i) says that except when “manifest injustice would result,” “the party seeking discovery” must “pay the expert a reasonable fee for time spent in responding to discovery.” It’s unclear whether by “time spent” the drafters meant the time the expert spends preparing to testify as well as the time he or she spends traveling and in the deposition itself. Theoretically, though, it means you will pay the fees associated with deposing the other side’s expert.

Practically, however, in my experience, it almost never works that way. Each side usually pays its own experts, figuring that if each side bears its own costs, it will all come out roughly even in the end. Usually, that’s true. But what about when it isn’t true at all?

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