Are Litigation Experts Entitled To Prepayment for Depositions?

prepayment

We are seeing an increasing number of opposing experts requesting advance payment of an estimated amount of fees/expenses in exchange for the expert agreeing to appear for the deposition as scheduled. As lawyers, bloggers, and lawyer bloggers, we take issue with this approach for a number of reasons. First and foremost, how can anyone possibly know how long a deposition is going to take before you take it? What if the expert agrees out of the gate with your position and the deposition takes five minutes? What if the expert digs in and offers only evasive testimony, and the deposition takes twice as long as it should? Also, how can you estimate the expert’s actual travel time to/from the deposition without knowing traffic and weather conditions, et cetera?  Basically, there does not appear to be any reasonable way to estimate fees and expenses until the deposition has concluded and the expert has arrived back home from the deposition. But we have nonetheless searched for support for the argument that an expert is entitled to prepayment, and we are unable to find any authority on the issue.

While most state rules follow the federal rules and require the party deposing the expert to pay the expert’s reasonable hourly rate and expenses for the deposition, we are unable to find any requirement that the deposing party pay in advance, and the case law we have found suggests that deposing parties are not required to do so.  See, e.g., Regions Bank v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 U.S. Dist. LEXIS 108820, at *6 (M.D. Fla. Aug. 18, 2015) (finding that “Fed. R. Civ. P. 26(b)(4)(E) does not require payment in advance of the deposition of the expert.”).

If anyone has any support for the proposition that experts are entitled to prepayment, we would appreciate you passing it along, but until then, we will continue to refuse to prepay for expert depositions, and we will take the position that an expert must be present and prepared to give the deposition as noticed without prepayment.

Comments

  1. Can’t speak to any legal reasons, but this isn’t uncommon with contractors in other fields. An amount based on an estimation, contract “breakpoints” where payment is due, assuming progress has continued as specified, and final payment upon delivery. This protects the contractor from things like clients finding one way or another to delay payment or get more work for the agreed upon price.

    As for estimating goes, estimating is always a tricky business for exactly the reasons you outline. You can’t know what will happen. But you can know what *should* happen, based on your experience and the information you have at hand. You bring the example of what if the expert agrees with you and it’s a five minute deposition. I ask why that wouldn’t be brought up in the estimate by an honest expert. Same with your other example. If your expert is deliberately padding billing with delaying tactics then it’s likely happened before. Due diligence *should* bring this out. And just like a lawyer padding billing, there are professional risks in cheating customers.

    No, there’s no more a legal imperative to prepay an expert than there is to make incremental payments over the course of a long term project with a contractor. But that doesn’t make it wrong or arbitrary.

  2. In California, by statute, you pay at the time of the deposition the estimated duration, then pay the balance due before a statutory deadline.

  3. I can’t see too many courts allowing this. There’s scattered case law rejecting it, like Almonte v. Averna Vision & Robotics Inc., No. 11-CV-1088S SR, 2014 WL 287586, at *3 (W.D.N.Y. Jan. 24, 2014). It also seems that any amount of advance payment would in effect be a flat fee, which the case law consistently rejects.

    What an annoying development. Hard to fault the lawyers, though, because experts will do what they do. I can’t imagine any lawyer being happy to have to go to the court to defend their expert delaying the deposition and motion schedule.

    The better course for the genuinely-worried expert is to do the deposition and then, if the other side stiffs them, making them look bad to the court. A good expert should know they’re actually in a better bargaining position after the deposition than before it.