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LEGAL EASE
‘Do I have to?’
and ‘How much?’
Part II of II
By George F. “Rick” Evans
Last month’s article discussed the issue of whether or not a each judge to decide. The rule doesn’t expressly say you have to
physician can be required to testify in a civil or criminal proceed- pay the person for his time. It just says the person must be pro-
ing. I hope I answered the question, even if it may not be the tected against any expenses incurred in complying with the sub-
one you wanted to hear. This month let’s move on and talk about poena. Some judges will be sympathetic to the argument that a
how much money, if any, you can get if and when you do testify. doctor who has to cancel all his Monday afternoon patients to
give testimony should be compensated for that lost income.
QUESTION TWO Other judges may feel a rich doctor can afford a few hours to tes-
How much, if anything, can you charge if you testify? To tify, especially if the other side doesn’t have much money with
which to pay for the doctor’s time. There’s simply no clear answer
answer that we have to first decide if you have to testify because to whether you have the right to be paid for your time. There is,
you’re somehow involved with one of the parties (i.e., a medical however, a strategy you can use which will be discussed later in
eyewitness of sorts) or whether you’ve got no relationship at all this article.
with the parties or the case (i.e., when you’re asked to be an
expert). Now, let’s assume you’re not involved as a “medical eyewitness”
but are just being asked to serve as an expert. As discussed pre-
Let’s assume you are somehow involved. Let’s assume that you viously, you don’t have to do this. It’s entirely your choice. But
provided some care at some time to one of the litigants in the if you do, how much can you charge?
case. To use the phrase from last month’s article, you’re a “medical
eyewitness” to some event and therefore can be compelled to tes- The short answer is as much as you want – as much as the mar-
tify just like any eyewitness. Things get tricky here. Technically, ket will bear. In other words, as much as the other side is willing
any of the attorneys to the parties can have you served with a sub- to pay that you’re willing to accept for your time. There are no
poena to testify and all you’ll get is the few dollars that comes at- laws, rules or regulations which say how much. It’s up to you.
tached to each subpoena. It’s literally just a few dollars. Seriously. Now, that said, let me at least give you some guidelines based on
But can you get more or is that all? almost four decades of experience.
Texas Rule of Civil Procedure 176.7 provides that any person Experts in any field aren’t impossible to find. They even ad-
who issues a subpoena must take reasonable steps to avoid im- vertise in many legal publications, on the Internet, in blogs, etc.
posing an expense on the person who must respond to the sub- So, if you want to be an expert and earn some extra dollars, be
poena. It further states the court may require that a witness be aware that you can price yourself out of the market. You’re not
compensated for any undue hardship. What that means is up to irreplaceable. Plus, when an expert charges too much per hour,
30 San Antonio Medicine • June 2015
