I have endured taken a series of expert witness depositions in the last few months. They generated this post because experts seem to have forgotten a few things about deposition fees.
In Nevada state courts, expert witness deposition fees are governed by NRCP 30(h)(1). First, the “party desiring to depose any expert who is to be asked to express an opinion, shall pay the reasonable and customary hourly or daily fee for the actual time consumed in the examination of that expert by the party noticing the deposition.” That is simple enough, if the deposition takes 2.5 hours, the noticing party must pay for 2.5 hours of that expert’s time. The party is not responsible for preparation time. Second, if someone else questions the witness during the deposition, “that party shall be responsible for the expert’s fee for the actual time consumed in that party’s examination.” That part seems simple too. If the party disputes the fee to be charged, the party may file a motion per Rule 30(h)(2).
Third, “[i]f requested by the expert before the date of the deposition, the party taking the deposition of an expert shall tender the expert’s fee based on the anticipated length of that party’s examination of the witness.” This should be simple. If the expert requests pre-payment, then I will provide a good faith estimate of the anticipated length and pay for that time. If I believe the deposition will last 2 hours, that is the estimate I will provide.
Frustratingly, I have routinely encountered experts in the last few months who do not understand this or believe it does not apply to them. To be clear, I don’t care what your “minimum charge” is for a depositionwhich happens to be the same amount as your mortgage on your vacation home. I don’t care if you have a “minimum duration.” I will prepay for the two hours I anticipate using, nothing more.
This then leads to another misunderstanding. Expert witnesses think that if I prepay for two hours, then they can get up and leave when the two hours expire. I have seen several literally set a timer. As a disclaimer, I rarely run over my estimated time, but it can happen when I show up and the expert has a brand new report, new opinions, or is a blathering idiot problems arise. I strongly caution experts against getting up and walking out of a deposition. Rule 30 allows a deposition to last 1 day of 7 hours. If counsel estimates a two hour deposition but takes longer, that does not permit the expert to end the deposition. If the expert is going to set a timer, I recommend setting it for 7 hours of actual deposition time. If an expert witness terminates a deposition before that, it will lead to a variety of motions that could be quite expensive for that expert.
If the deposition lasts longer than anticipated, Rule 30(h)(1) still protects the expert’s right to payment. “If the deposition of the expert takes longer than anticipated, any party responsible for any additional fee shall pay the balance of that expert’s fee within 30 days of receipt of a statement from the expert.” When that happens, my last questions in the deposition are typically asking the expert to agree with me how long the deposition went over, how much the overage charge will be, and that the expert will send an invoice for that overage. By resolving this at the end of the deposition, while still on the record, expectations are established and the probability of a dispute is lessened.