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LEGAL EASE

Continued from page 31 If it’s unusually high, or the income you generate working as
an expert is substantial when evaluated over the course of time,
Friday afternoon to testify first thing Monday morning, you expect some harsh cross examination. The other side will chal-
can argue this is unreasonable and that you require more ad- lenge you as a paid gun for hire rather than a disinterested, ob-
vance notice. A judge will likely cut you some slack. Not nec- jective expert witness.
essarily weeks of time, but most judges will try to work with
your schedule so it won’t wreak havoc with it, especially if you You can’t charge based on the outcome of a case. Don’t even
paint it in terms of what it does to your patients rather than go there. And your rates can’t vary depending on the outcome
how it inconveniences you. of the case. Again someplace you shouldn’t go.

When the other side has agreed to pay for your time and you’ve So, that’s your primer on whether you have to testify and, if
agreed upon a rate, you may want to ask to be paid in advance you do, can you require payment for your time and how much
rather than after the fact. This is particularly true when dealing you probably can fairly charge. The rules aren’t crystal clear,
with attorneys you don’t know and haven’t worked with before. carved in stone, and easy to apply. But this should give you a
And for law firms that aren’t known to you to be well established good sense of what you can and can’t do.
and respected. And for lawyers outside of Texas and, frankly, out-
side your own community. Ask for a retainer that you will keep George F. “Rick” Evans Jr., is the founding partner of
like a landlord keeps the first month’s deposit. You’ll still bill Evans, Rowe & Holbrook. A graduate of Marshall Col-
hourly and, at the very end of your services, you’ll bill from the lege of Law, his practice for 36 years has been exclusively
retainer and refund the balance. dedicated to the representation of physicians and other
healthcare providers. Mr. Evans is the BCMS general counsel.
Some doctors working as experts will bill at different rates de-
pending on what they’re doing. Not uncommonly, I’ve heard ex-
perts bill at one rate for reviewing medical records and writing a
report, a slightly higher rate for testifying in deposition, and third,
even higher rate, for testifying at trial. Because your hourly rate
should be a replacement for the income you lost caring for pa-
tients, this stair-step system of rates doesn’t make sense to some
juries. Your lost income should be the same regardless of whether
you’re setting time aside to review records or to give a deposition.
Yet, this happens with enough frequency that you can do it, if
you want, without much problem.

Some witnesses working as experts like to charge a flat rate for
certain events such as giving a deposition or coming to a trial.
This rate is fixed regardless of how much time is required. For
example, you may decide to charge $3,000 for a deposition
whether it takes two hours or 8 hours. The rationale is that, be-
cause you don’t know how long the event may take, you have to
set aside an entire morning, afternoon, or the full day. If it only
takes one hour and you cancelled all afternoon appointments,
you might lose money on the deal. There’s no hard and fast rule
here. You might charge hourly with the condition that it be no
less than “X” amount. Again, the choice is yours and is subject
only to the limits of the market place and your imagination.

The “other side” is entitled to know how much you charge,
how much you’ve been paid, and what other financial arrange-
ments you have with any party that has retained your services.

32 San Antonio Medicine • June 2015