The expert trial witnesses who charge $2,500/hr

The Depp-Heard trial was the latest courtroom battle to call attention to the gainful microeconomy of expert witnesses. by Zachary Crockett. [The Hustle]( Issue #211 [The Hustle, June 5, 2022]( June 5, 2022 The lucrative economics of expert witnesses The Depp-Heard trial was the latest courtroom battle to call attention to the gainful microeconomy of expert witnesses. BY [Zachary Crockett]( In the waning days of the defamation trial between Johnny Depp and Amber Heard, Dr. Shannon Curry was called to the stand. Curry, a California-based psychologist, had been hired by Depp’s legal team to offer her opinion on Heard’s alleged personality disorders. But during cross-examination, Heard’s attorney, Elaine Bredehoft, had a different [line of questioning]( for the doctor: [exchange] The exchange was lost to the more salacious details of the trial — but it provided a rare glimpse into the economic underbelly of the expert witness industry. Expert witnesses are used, to some degree, in ~8 out of 10 trials in the US. Over the past 50 years, they’ve become increasingly more prevalent in the courts, and often hold great sway over judges and jurors. But little is known to the general public about how they’re sourced and how much they’re compensated for their contributions. To find answers to those questions and more, The Hustle spoke to expert witnesses, legal consulting firms, and attorneys. A primer on witnesses In general, there are three types of witnesses: - Lay witness: Someone who witnessed certain events firsthand and can speak to what they saw. - Character witness: Someone who knows the victim or defendant and can speak to their personality traits. - Expert witness: Someone who is educated on a certain subject (forensics, psychology, surgery, etc.) who offers their professional opinion as it relates to the facts of a case. Lay and character witnesses are typically not compensated much, if anything, for their time. For federal cases, they receive $40 per day + $0.57 per mile for travel to the courthouse. For state-level cases, these daily fees range anywhere from $0 (Kentucky) to $95 (New Mexico). [pay by state] Zachary Crockett / The Hustle Outside of these small mandated fees, it’s illegal to pay most witnesses for their testimony — an effort to keep the court free of bias. “It’s kind of like being paid for jury duty,” John Lewis, a California attorney, told The Hustle. “There aren’t big bucks in being a subpoenaed witness.” Expert witnesses, however, are a different story. The lucrative business of being an expert witness With virtually no fee caps, experts are paid what the market demands for their services — and the market for their services is very robust. In a high-profile case with millions of dollars at stake, it’s not uncommon to have 6-10+ expert witnesses between opposing sides. The Depp-Heard trial featured nearly a dozen expert witnesses — psychologists, surgeons, entertainment and intellectual property lawyers, forensic accountants — that Lewis estimates collectively charged $1m+. But experts can rack up enormous fees in less glitzy cases, too. A 2017 [murder trial]( involving a police officer cost public defenders and prosecutors in the small town of Coeur d’Alene, Idaho $600k in expert testimony — $210k of which was paid to a single psychologist. Expert witnesses usually charge hourly rates for trial preparation, depositions, and testimony, which can add up quickly in complex cases. In a 2021 [survey]( of ~1.1k expert witnesses, the average hourly rates for these three services worked out to some pretty princely sums: - Case prep: $422/hr - Deposition: $524/hr - Trial testimony: $550/hr In a typical case, the average witness took home $13k for ~25 hours of work. But in one case, a forensic architect — who investigates the causes and origins of construction failures — reported getting paid $2.4m. [average rates] Zachary Crockett / The Hustle Of course, these hourly fees vary widely according to area of expertise. Medical professionals dominate the highest-paid gigs. Hand surgeons, who are hired to testify in medical negligence cases, average as much as $1.4k/hr — ~10x higher than the [national hourly average]( for their day job. Horse experts, on the other hand, who might be called upon for equine appraisal in estate disputes, charge an average of just $225/hr. Keith Diaz, an assistant professor of behavioral medicine at Columbia University, says his work as an expert witness is “just a little extra pocket change.” In 2015, Diaz was cold-contacted by a Connecticut prosecutor working on a [murder case]( involving a FitBit. He was asked to testify that the device was accurate — and for $350/hr, he eventually helped the prosecution win the case. Since then, he’s worked on 3 other cases. “The amount of work, and what you’re paid, depends on the case,” he says. “Sometimes, you have to conduct simulations in the lab, process a bunch of data, or do forensic analysis. Other times, it might just be 20 hours of research and two days in court.” [expert witness pay] Zachary Crockett / The Hustle When it comes to setting fees, expert witnesses can, as one attorney puts it, “pretty much go buck wild” — with one exception. Let’s say an expert psychologist is hired by the prosecution for $700/hr. If the defense team wants to depose her, it must pay her for the privilege. Under the [Federal Rules of Criminal Procedure](, she must charge the opposing side a “reasonable fee.” “Reasonable” is up to interpretation, and has been contested in court many times: - Cartrette v. T & J Transport, Inc. (2011): A treating physician’s demand for $1.5k/hr was reduced to $400/hr. - Maxwell v. Stryker Corp. (2012): An orthopedic surgeon’s demand for $2k/hr was knocked down to $750/hr. - American Medical Systems, Inc. Pelvic Repair Systems Products Liability Litigation (2019): A pelvic surgeon’s request for $18k/day per day was reduced to $750/hr. But this one restriction doesn’t seem to harm experts’ earnings much. The expert witness training business When attorneys need to find an expert witness in a pinch, they turn to a $300m+ [cottage industry]( of directories, referral services, and journals that compile and dispense professionals in hundreds of trades. On [SEAK](’s expert witness directory, a lawyer can select a specialty and browse through the backgrounds of more than 2.3k experts in all sorts of hyper-niche fields: - Street sweepers - Cryptocurrency scholars - Wine and spirits distributors - Ski accident reconstructionists “It’s like the Yellow Pages for expert witnesses,” says James Mangraviti, an ex-attorney and SEAK principal. The company lists experts for free, but makes money by allowing experts to buy promotional placements in the search results. [expert witness directory] A search for ‘psychology’ on SEAK’s expert witness database returned 125 witnesses for hire (SEAK) SEAK also runs a lucrative business selling training courses to experts. Its most popular Zoom seminar, “How to Start, Build, and Run a Successful Expert Witness Practice” ($1,295) claims that experts can “easily double their income by devoting one day a week to expert witnessing.” “An expert has to walk into a courtroom — a very intimating place — and get cross-examined by an aggressive person who’s getting paid a lot of money to make you look like a fool,” Mangraviti says. “So of course, they need to be prepared for that.” Being a successful expert witness extends beyond expertise and knowledge. When selecting an expert, lawyers often look for traits beyond scientific rigor, like confidence, attractiveness, and poise. "[A] fool with a small flair for acting and mathematics might be a more successful witness than, say, Einstein," [wrote]( one scholar. "They’re not chosen for their knowledge but for their ability to persuade." There’s a reason for this: Witnesses who are self-assured, make eye contact, and speak calmly are [perceived]( by jurors to be more knowledgeable and trustworthy. [expert witness confidence] Zachary Crockett / The Hustle Other services, like The [TASA Group]( and [Round Table Group](, field requests from lawyers and hand pick experts that fit the occasion. [ForensisGroup](, founded in 1991, boasts a rolodex of experts in 10k+ specialties and brings in $10m+ in revenue in referral fees. While the majority of expert witnesses on these platforms are gainfully employed and only do witness work as a side gig, several large firms ([FTI](, [BRG]() retain full-time economic consultants who often earn $500k+/yr testifying in court. "We've given economists the chance to earn investment bankers' incomes," David Teece, the founder of BRG, [told]( The Wall Street Journal in 2007. But these lucrative incentives come with a moral trade-off. The ethical quandary of the paid witness Diaz, the FitBit expert, says competing interests can make it challenging at times to “stick to the science” at trial. “You get on a call with a lawyer who wants you to be a witness, and they give you all these reasons why the defendant is a lowlife and a terrible person,” he says. “They try to convince you. It’s tricky to not let that influence your opinions about what the data show.” In court, witnesses like Diaz often feel they’re pressured into forming definitive opinions that stretch beyond sound science. “If a heart rate is elevated at a certain time, a prosecutor wants me to say ‘It’s because she was dying.’ I can explain how the device works, but I can’t tell you exactly what that means,” he told The Hustle. “You have to be really careful and stay out of muddled areas.” [Keith Diaz] Keith Diaz, a professor and expert witness in cases involving fitness trackers (Columbia University) Diaz’s concern cuts to the heart of one of the legal world’s biggest internal debates: Can expert witnesses who are paid exorbitant sums by one side of the courtroom maintain scientific truthfulness? The harshest critics of expert witnesses [call them]( “well-paid prostitutes who sell their services to the highest bidder.” In her 1997 book, “Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice,” Dr. Margaret A. Hagen argues that the legal system has been “bamboozled” by scientific sellouts. “Experts who help lawyers win cases are often rewarded with more work and more money,” says Lewis, the California attorney. “They have a strong financial incentive to please the person paying their checks.” There may be some truth to these claims: - A 1994 [study]( of 131 cases across Baltimore, Seattle, and Tucson found that 77% of expert witnesses thought lawyers manipulated them to weaken unfavorable testimony and strengthen favorable testimony. - Two separate surveys of judges conducted by the Federal Judicial Center [concluded]( that “experts abandon objectivity and become advocates for the side that hires them.” But others say the notion that money distorts objectivity is a red herring used by opposing lawyers to tear down experts’ credibility. “Everybody’s getting paid in a courtroom,” says Mangraviti. “Real experts have solid, truthful opinions that don’t waver under pressure.” Share & discuss this story on: [Facebook]( [Youtube]( [Instagram]( [Trends]( Free Resource How Apple iOS 15 changed email marketing Along with the iOS 15 software update came the almighty Mail Privacy Protection (MPP) function, which allows a user to hide their IP address. That’s peachy for most people, but painful for the email enthusiasts — we said goodbye to banking on a few key features including open rates and location-based content. Three quarters later, we have a much better view. Especially since a HubSpot analyst surveyed 300 marketers for fresh best practices. Blog post: [MPP’s deep impact on email]( - What increased privacy means for marketers - Four major ways email marketers have adjusted - Data-backed email strategy pivots to consider The section for the second bullet has a ton of important information. Read the post below to learn how email analytics have changed since iOS 15. [Email marketing insights →]( How did you like today’s story? Today's email was brought to you by Zachary Crockett and Brad Wolverton. Was this email forwarded to you? Sign up [here](. 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