The Power of Words

Words have great power, as any linguist will tell you.  The particular word chosen can greatly influence the audience’s perception.   For example, in personal injury litigation, it is common to call a collision between two cars an “accident”.  That is how people generally speak about such things.  The problem is that the word ”accident” is used in our vernacular to indicate something that has occurred through no one’s fault.   

Webster New Word Dictionary defines “accident” as a chance happening or mishap.  Calling a collision an accident has the tendency to create an inappropriate bias for the defendant, by creating a conscious or unconscious misunderstanding that the incident was fault-free, or a chance happening.

 A one-liner used by some insurance company lawyers in closing argument to the jury is “Accidents happen.”  This suggests to the jury that no one should be held accountable.  It was no one’s fault.  My one-liner response is “Carelessness causes accidents”.   Since personal injury litigation is about fault and damages, it is important to minimize the use of the word “accident”.  I prefer “incident”, “collision” or, best of all, “wreck” or “crash”.  Even “fender bender” is better than “accident”. Similarly, insurance company lawyers refer to collisions between cars and children as “child dart out” cases.  Smart plaintiff’s lawyers call them “pedestrian knockdown” cases.  You can easily see that the label we place on a situation can influence how it is perceived.

Capping expert fees for testimony

So you think nothing can be done to stop expert witnesses from the mercenary practice of excessive charges?  Are you concerned that you will have to pay an expert $5,000 or more for an hour of her time in court?  If you live in my state, Pennsylvania, you have cause for concern. 

But in many states, the courts limit the fees paid to expert witnesses (including doctors).  There is a significant body of law interpreting the term “reasonable fee” in the context of expert witness testimony.  Our research of reported court cases from 1994 to 2001 did not reveal a single case approving an expert witness fee in excess of $400 per hour. 

The range was from $250 an hour to $400 an hour for live testimony.  The $400 rate was reached only after the parties stipulated to that number, with the court commenting that it would only have approved a rate of $220 per hour.

One case in Chicago, which set the expert witness fees in the $300 to $400 per hour range, has apparently now become standard practice in Cook County.  The federal court in Baltimore restricts the hourly rate treating doctors can charge to $250.

The San Diego County Superior Court established a fee schedule for various expert witnesses.  It states in part, “Excessive expert fees are limiting access to the court and undermining the quality of justice”.  The fee schedule is as follows:

                        $250 — physicians, osteopaths, surgeons, dentists

                        $250 — attorneys

                        $200 — psychologists

                        $200 — economists

                        $200 — engineers, architects

                        $150 — chiropractors

MICA (Mutual Insurance Company of Arizona), the largest liability insurance carrier for Arizona physicians, hires more expert witness doctors than any other entity in Arizona.  It imposes a $300 per hour cap on its testifying experts.

In Massechusetts, the court approved a rate of $375 per hour for a “prodigiously qualified” toxicologist.  In Illinois, a psychiatrist’s fee was reduced from $600 to $250 per hour.

In Delaware, a pediatric neurologist’s fee for testimony was reduced from $1,200 for the first hour and $1,000 per hour thereafter to $1,100 for the first two hours and $300 per hour thereafter.

In Colorado, a senior attorney was permitted to charge no more than $235 per hour for his expert testimony.  In Iowa, a motor vehicle aerodynamics expert’s charges were reduced from $500 to $250 per hour.

Experts should not be permitted to profiteer by gouging excessive fees from litigants who desperately need their testimony, and have no choice but to pay.  It makes sense to cap expert fees to a reasonable amount.  Caps help to bring litigation costs down, and that’s good for everyone.  

Now if only the legislators in Harrisburg will consider this in the next round of “tort reform” battles ….