Thursday, October 19, 2017

EXPERT WITNESS | Daubert Factors, Billing

I have served as an expert witness in equal opportunity, election district, utility rate, utility merger, environmental and real estate cases. My testimony was crucial in several cases. 

Most of the time I was working with lawyers for a nonprofit groups or a government agency, and I was paid for my work. In a few cases I donated my expertise to a cause. 

In two cases, for which I put in a substantial amount of time, I was promised payment and was not paid. In one of these cases, the payment was contingent on the nonprofit getting payment from a judge. In the other, the attorney lied to me. Imagine.­čś▒

I am posting this to make sure that I have done my best to prevent someone else making the same mistake that I did. If you are told you will be paid, there are steps you need to take to make sure you are.

The Five Daubert Factors 

The Daubert factors are familiar to lawyers but not always to expert witnesses. Understand that your expertise may be matched against that of someone else on the other side. 

These factors are a recapitulation of Federal rules of evidence. A case went up to the Supreme Court, which decided that these rules should govern how expert evidence is used in a Federal case (I am paraphrasing from a summary posted by Expert Witness):

1. The expert’s scientific, technical, or other specialized knowledge must be helpful to the trier of fact to understand the evidence or determine a fact in issue, 
2. The testimony must be based on sufficient facts or data, 
3. The testimony must be the product of reliable principles and methods, 
4. The expert must have reliably applied the principles and methods to the facts of the case, and 
5. In some federal courts, a Daubert challenge must occur regarding any expert review.

If it looks as though you won't be able to get through all these steps, don't take on the job. The lawyer may sound desperate – but that's his problem, not yours. 


Don't start work until you have a retainer agreement, especially if a lawyer has called you out of the blue. You don't want to have to contemplate suing a lawyer; it costs you money and is free for him or her. Don't be a victim.­čśĺ

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