A View from the Bottom – Expert Witnesses
By Victor VeVea
The Bible explains that no prophet is accepted in his own country (Luke 4:24) and does not receive honor in his own country or among his own family (Mark 6:4; Matthew 13:57; John 4:44). The Quraysh clan in Mecca rejected the teachings of the Prophet Muhammad, even though it was his clan and included members of his own family. When his uncle rejected him, Muhammad cursed him and his family (Qur’an 111:1-5) and Muhammad fled to Medina.
Experts are the prophets of today and may share the stigma of being rejected as experts by their own community. As Naomi Judd explained it, “An expert is just somebody from out of town with slides.” (Naomi’s Breakthrough Guide)
The ancient tradition of rejecting local prophets in favor of ones coming from a distance continues in Kern County where we often hold out-of-town experts in high esteem but ignore home-grown talent. In indigent criminal cases, this is costly to the county and may result in less effective representation for defendants.
Out-of-town experts are generally more expensive because of the cost of travel and time spent traveling, but that is only the beginning of the problem. Because foreign experts are often viewed with great favor, their rates and billing practices are rarely questioned until the total billing becomes truly exorbitant. The position of high esteem also frequently results in experts charging higher rates in our county than the rates charged in other counties.
This can cause a domino effect because neither the experts nor the attorneys requesting the experts have an incentive to seek funds for the full cost of services in the initial ex parte request. To seek all required funds up front may be fatal to the appointment. Instead, an expert may get his foot in the door with a high hourly rate and a small number of hours, which the court is willing to pay because the total cost is small. However, once the foot is in the door, the whole body can follow and the cost may increase dramatically.
As an example, it is typical for a pathologist or other highly trained medical doctor to request, “an initial authorization” of around $5,000 at the normal billing rate of $350 an hour “for initial review of medical records, analysis, consultation, and opinion.” The expert may later request an additional authorization of $5,000 or more for “additional testing, review, and consultation” and then additional authorizations until the matter proceeds to trial, at which time the expert is at liberty to request much more for travel expenses and trial time because it is too late to switch to a different expert. The expert is in a strong negotiating position and can demand nearly any amount. The total cost of such an expert can be $20,000 or more, but the court would most likely have denied a request for $20,000 if the request were made in one lump sum near the start of the case.
By requesting an “initial authorization” significantly lower than the anticipated total authorization, the expert gets into the case with the expectation of significantly greater future income. The incentive for the expert, and for the attorney desiring the expert’s assistance, is to keep the initial authorization low enough to ensure approval by the court, even if the full cost of expert services could have been estimated at the start of the case. Experts are tacitly aware that once they get into a case, it becomes cost prohibitive for the court to change to a different expert.
When the court is confronted with unexpected or undisclosed cost overruns, they have only two real choices: pay the demanded fee or risk the departure of the expert. Any mid-trial reduction of the expert’s fees risks claims of error during post-conviction proceedings. The defense may have decided not to call the expert because the prosecution conceded the matter sought to be proved, but could it be that the expert didn’t testify because he wasn’t paid his full fee? The expert may have given curt answers during the trial that were of little help to the defense because he was nervous, or is it possible he was not helpful because he was mad that he wasn’t being fully compensated for his testimony? Cutting expert rates mid-trial invites such questions.
The cost overrun problem is compounded by the lack of incentive for attorneys to negotiate rates with experts. While experts are, in theory, neutral in the proceedings, money or lack thereof can change an expert’s attitude or availability. An expert is naturally going to be more favorable to an attorney who agrees to pay the expert’s full rate than to an attorney who constantly complains about that rate and attempts to cut it. This is not to say that the expert’s opinions or testimony will be changed by the pay, but experts are people, and it is natural for people to be more helpful to those who are more helpful with them.
An expert can simply review evidence and prepare a report as authorized, or the expert can be more helpful by suggesting additional defenses that might be shown by the evidence. An expert can appear on the date indicated on a subpoena or can be more helpful by agreeing to appear at any time during a given week. An expert who has a friendly relationship with the attorneys can make things easier for the attorney, but such a friendly relationship can be destroyed by an attorney’s attempts to cut an expert’s rate. There is no incentive for an attorney to negotiate an expert’s rates, and there is a great disincentive for an attorney to attempt to cut an expert’s rates. A reasonable attorney employing a reasonable expert will request that the court give that expert his regular rate, even if that rate is significantly higher than the prevailing rate for similar services.
There is, however, an incentive for agents to negotiate higher rates for experts. Agencies, such as Tasa Group, and expert groups, such as Boster Kobayashi, receive their money based on the amount of money paid to the experts they promote and employ. These are valuable organizations that help match experts with cases, but the fee arrangements naturally give these organizations an incentive to maximize the billing rates for the experts they work with. However, the experts are not necessarily under an exclusive contract, and some experts can be employed independently of agencies that promote them. Further, equally qualified experts may be available without the burden of having to share fees with an agency. Even though expert witness agencies provide a valuable service to the experts and the courts, one must be mindful of the fact that employing an expert through an agency might dramatically increase the fee.
The lack of negotiation by attorneys or those acting on behalf of the county has led to higher rates for our county than rates charged in other counties. Our county does appear to have some theoretical standards for negotiated rates, such as a panel of mental health professionals with fixed rates for some services, like competency evaluations. The county also negotiated a contract for indigent defense that included a provision that expert rates will be negotiated by the program, but the provision has slipped through the cracks, the original charter appears to have long been forgotten, and there is neither an expert panel nor negotiate rates for such experts. The departure from the indigent defense charter, combined with the adoration of out-of-town experts and the disincentive for attorneys to negotiate expert witness rates, has resulted in a significant increase in expert witness rates for our county.
I work on cases involving some of the same experts in several counties. I have only anecdotal evidence to support my theory because I am only privy to a small percentage of the expert appointments, but my conservative estimate is that Kern County spends a premium of about 25% for experts compared to other counties. I offer a few examples in support of my theory.
Some out-of-town DNA laboratories, such as one from Hayward and one from Ventura, are well known and regularly appointed in multiple counties. Both laboratories do excellent work, and each charges $200 per hour in Los Angeles and Tulare County. In our county, each charges $250 per hour, a 25% price increase. They each also charge our county travel expenses at rates that are not allowed in some other counties. A well-known prison expert charges $125 when working in Los Angeles County, but charges $175 in Kern County, a 40% price increase. This expert’s fees are especially illustrative of the idea that we idolize out-of-town experts because we have many local retired CDCR officers who could readily testify to normal prison procedures at a much lower rate. Two well-known and highly qualified gang experts each charge $200 an hour in Tulare County, and one of them charges $250 an hour in Los Angeles County, but each charges $250 an hour in Kern County, a 25% price increase.
There are many out-of-town gang experts yet, I have not yet met an out-of-town gang expert who knows the difference between Spoonie G, Stoller Boy, and Clifton Mob. Indeed, I have yet to meet an out-of-town gang expert familiar with the fact that Project Crips hate Family Crips and both hate Cottonwood Crips. Out-of-town gang experts can readily explain the Red/Blue conflicts of Norteños v Sureños and Bloods v Crips, but alleged gang violence in Bakersfield is often Crips against Crips and Sureños against Sureños. It is all too common in Bakersfield for a Country Boy Crip to shoot a Spoonie G Crip or a South Side Baker to rob a Varrio Baker, but such attacks are blue on blue – Crips against Crips and Sureños against Sureños. Common Bakersfield gang rivalries are generally unknown to out-of-town experts, so local gang culture can probably be best be explained by local experts, and at lower rates than the highly admired foreign experts.
As with other complex problems, there are no simple solutions, but I offer a few suggestions.
First, presume that all travel expenses will be from the county line. I regularly provide services to Tulare County. To obtain payment for those services, court rules mandate that I sign a declaration stating that “I, Victor VeVea, declare under penalty of perjury that no time or travel expense between Tulare County and my office which is located outside of Tulare County is included in this statement.” If I want to do business in Tulare County, the burden of traveling to Tulare County is on me. That is reasonable. It is also reasonable to expect experts outside Kern County to bear the expense of traveling here to perform their services.
Second, pre-negotiate expert witness rates. The charter for the local indigent defense program, approved more than a decade ago, calls for such negotiations, but the negotiations have not yet been conducted. Los Angeles County has conducted negotiations and has prepared an approved list of experts along with rates for those experts. Those rates are generally, perhaps always, lower than the rates charged to Kern County. San Diego also has a list of approved mental health experts with approved rates; the highest of which is $150 per hour. Kern County would benefit from having a list of pre-approved experts.
Third, set a general limit on expert witness rates. Such limits are common. As examples, Tulare County has a limit of $200 per hour and $800 maximum fee per day of testimony. San Diego and Fresno Counties limit fees to $150 per hour. Experts are limited to these maximum rates unless an exception is sought and obtained from the court upon a showing of special circumstances.
Fourth, remove rate negotiations from the attorneys. A defense attorney should not be placed in the position of negotiating a higher rate for an expert. The defense attorney should merely request the expert, and a neutral negotiator should assist in coming up with a fair rate for that expert. The same goes for prosecution experts – a neutral party should negotiate rates for any experts.
Fifth, require total cost estimates instead of initial review authorizations. When requesting appointment of an expert, counsel should be required to estimate the total cost of the expert as follows:
- The initial authorization requested is: _____________
- If the result is favorable, additional authorizations are estimated at: ____________
- If the matter proceeds to trial, travel expenses are estimated at: _______________
- If the matter proceeds to trial, trial testimony is estimated at: _______________
- Additional anticipated costs are estimated at: _________________ and includes the following:________________________________________________________________.
Sixth, require consideration of local experts, such as a statement:
- I have made the following efforts to secure an expert in this county:______________
- I have not been able to secure such an expert because:______________________
The expert witness appointment system will never be perfect, but there is great potential for cost savings by taking ideas and policies from other counties who have already addressed expert witness problems.