Lawyers PI Program
From the Desk of:
Mark Studin DC, FASBE (C), DAAPM, DAAMLP
“Testifying Fees and the Plight of the Clueless Bastard”
PLEASE READ THIS FOR HISTORICAL PURPOSES ONLY. The entire process has changed with very different and powerful suggestions. Consultation #263 amends this and was writtne 3 years after this...but you need to read this to understand that....
For many years, I was determined to be the friend of every lawyer. I have a well-chronicled plight of excessive gifts, dinners, ballgames and other “crap” that I have wasted my hard earned money on in my feeble attempt to win the favor of lawyers. One area that I have only briefly touched on is testifying fees and how they fit into the above title, “Plight of the Clueless Bastard.” You see, I was (and probably still am) the clueless bastard.
Here is the typical scenario for the first timers in court. The lawyer calls you and asks you to testify on a patient of yours and then asks what your fee is. The questions start to amass in your head regarding how much to charge. What do I need to do? How am I going to prepare? Then the phone calls begin to all of your friends who are just as clueless as you and you get a consensus of inexperienced, uninformed opinions that will ill serve you.
For the more experienced witness, there is only one thought. My fee is $1500 or $2000 and let me know when the trial is. Both responses are very problematic and the answer is the same for both scenarios.
First, let’s look at what the lawyer goes through in the conversation. The lawyer, upon securing your commitment to testify, will work with the opposing lawyer to pick a date for the trial. Don’t be impressed with that date, as most of those dates will never happen. There will be delays, rescheduling and more delays. In fact, I was scheduled to testify for a trial 6 weeks from the lawyer's notice. This was cancelled 3 times and didn’t happen for 4 months. During that time, I canceled patients, lectures and other income producing events to meet the needs of the lawyer. Each time, I prepared for trial, learning everything I needed to know about the patient, the case, my notes and what to expect from the opposing lawyer. I do not like surprises on the witness stand and am, therefore, very prepared. That all takes time…My time. 2 days prior to trial, I got a very happy phone call from the lawyer that he settled the trial and was very, very appreciative of my efforts, but would not need me. This is a very typical scenario.
Last week, I received a call from a doctor in New York that had an urgent issue, as he was to testify for a lawyer that was a “friend” and asked if I could prepare him for trial. I asked how much he was charging and he said $1500. I scrambled to get all of the notes, records and forms to go over them so the doctor would be prepared. Then I realized that I would have to charge this doctor at least $300 to prepare him, as it would take me a minimum of 3 hours to learn everything and then prepare the doctor.
After a brief review of the case, I told the doctor there were very big problems with the lawyer’s case and he put me on the phone with the lawyer the day before the trial. After speaking to me, the lawyer called his partner in court who was the lead trial attorney. On the phone, he informed us that he had just settled the case. I didn’t have the heart to charge this doctor and, therefore, didn’t. The doctor got $0 and had to run around for days in preparation. The lawyer was very appreciative and the doctor was happy because he helped his “friend.”
Let me tell you more about his friend, the lawyer. The lawyer was very happy because he got to use the doctor’s reports and notes to create a threat of testifying in order to leverage his opponent into a larger settlement. This is a basic ploy by every trial lawyer and when he gets a “clueless bastard,” he is going to ride him like Seabiscuit to the pot of gold at the end of the rainbow. Meanwhile, the clueless bastard will get less than $0. Why less than $0? This is because the clueless bastard is funding the case. The cluesless bastard has to spend time preparing for the case, canceling patients, taking his focus away from his business, and being on the dangling thread of the lawyer who is using him for leverage and personal gain.
This is business and the lawyer, no matter how friendly, is not your friend in this business relationship. The lawyer is your ally and you are his ride to riches. Do not confuse friendly and collegial people as your friends. They are using you and that IS what you want…but…there has to be a fair exchange and this is non-negotiable.
Here are my rules for me after years of getting taken advantage of:
- My fee is $5000 to testify.
- I get paid 2 weeks in advance and there are no refunds, even if the trial is delayed or canceled, because I lose money on lost patient care time and need to be compensated.
- I provide the lawyer with 2 hours of preparation time prior to trial.
- If more preparation time is needed, I charge $300 per hour.
This set of rules is consistent with every other specialist who testifies, except they charge a lot more than I do. Orthopedic and neurosurgeons charge $10,000 for testifying, assuming they do not have to travel. I would suggest you do not change #2-#4, particularly #2. If you have been in practice less than 10 years and you add up the income you will be losing to testify, $2500 is a fair fee to start, provided that you aren’t giving up more than $2500 per day in income. If you are in practice more than 10 years, I would consider that a baseline. The lawyers will not hate you or be leery of working with you in the future. In fact, they will respect you as being experienced and it will make you a more attractive candidate for them to work with in the future.
Now, here is the caveat. This is all predicated on your being the “real deal” through clinical excellence and delivering on the witness stand. The witness stand is the easiest place in the world to shine, provided you have done your homework, taken the courses I have suggested in the previous consultations and have absorbed all of the reports, records and notes for the patient you are testifying about. Remember, this is where you get to explain everything about herniations, extrusions, protrusions, bulges, radiculopathies, etc. This is where the lawyer will see, firsthand, the depth of your knowledge and your understanding to the point where the opposing counsel cannot shake your testimony because you are the true expert. This is where you lock in a referrer for a lifetime and if you create the fair exchange financially, you can then be the instrument for the lawyer to prevail in the future…Game over…You win. It all starts with you and your willingness to be the best-of-the-best on trauma-related issues.
Isn’t amazing how it all goes back to that? This is where your CV is paramount because without the credentials, you will not be allowed by the courts to render an opinion on many subjects even though you might have the experience. However, experience without credentials is usually useless in court and inadmissible. When lawyers first meet you, this is what they are judging you on. How will you do on the witness stand? That is their end game and without the confidence that you can thrive, they will look elsewhere. Do not be an enigma to the lawyers. Have a business plan for testifying. If lawyers know you have set rules, it makes it easier for them to work with you.
Now, after all of that, I am going to share with you that I do have exceptions to my rules. There is 1 law firm that I do not make pay up front. This firm has referred to me, on the average, 60 cases per year and I testify for them regularly. In 10 years, I have been paid 100% of the time. That is my only exception, but they have earned my trust. You have to make your own decisions on your policies.
Be the best and make the commitment. Get paid. You are entitled.
For every time you collect more than an additional $500 as a result of these words, I now have a fee that you have to pay…You have to send me a gift card to Dunkin' Donuts for 1 large coffee…That is my fee for this consultation!!!!! I am such a coffee slut!