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Thread: witness fees

  1. #1
    wes owens's Avatar
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    Default witness fees

    Questions:

    Lets say you do an inspection on a new home after the buyer has moved in and you find a lot of problems. The buyer wants everything fixed and after they go to the builder, the builder says their not going to fix everything so the buyer takes them to court.

    Now, the buyer wants you to go to court and testify on their behalf.

    Are you entitled to witness fees or is that part of the deal and you just get to spend your time in court for free?

    Or does it depend on if your are summoned by the court because you were named as a witness?

    If you are entitled to witness fees, what is the average amount you would charge?

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  2. #2
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    Default Re: witness fees

    Talk to a lawyer. Make it one that is not associated with any of the other sides. This lawyer should be exclusive to you.

    I'm not saying that you would actually hire them, but you should consult before moving forward.


  3. #3
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    Default Re: witness fees

    Quote Originally Posted by wes owens View Post
    Questions:

    Lets say you do an inspection on a new home after the buyer has moved in and you find a lot of problems. The buyer wants everything fixed and after they go to the builder, the builder says their not going to fix everything so the buyer takes them to court.

    Now, the buyer wants you to go to court and testify on their behalf.

    Are you entitled to witness fees or is that part of the deal and you just get to spend your time in court for free?

    Or does it depend on if your are summoned by the court because you were named as a witness?

    If you are entitled to witness fees, what is the average amount you would charge?
    If you are subpoenaed and not paid for your time then you are just the custodian of record. This means that all you have to do is to say Yes, this is my report. If you are asked any questions about what was found you refer to what is written in your report, no more and no less.

    If you are asked for your opinion, you then turn to the judge and tell the judge that you have not been hired as an expert and that you are only the custodian of record. 95% of the time the judge will ask the attorney if they wish to hire you as an expert. This is when you had the judge your agreement and he instructs the attorney to either agree to it, pay you or end the line of questions.

    If your client has just asked you to do this, then you need to send them your fee schedule and expert agreement. They will either hire you or not once you explain it to them like I have done above.

    You do not offer an opinion unless you are paid to do so.

    Last edited by Scott Patterson; 02-01-2010 at 08:42 AM. Reason: Urrrrr........
    Scott Patterson, ACI
    Spring Hill, TN
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    Default Re: witness fees

    Scott is steering you on the right track. This has come up before, search past posts. Jerry and others have posted a lot of info on this. Going to court, meetings, research, everything is time you should be paid for. There is no average. Charge by the hour. I've done simple cases that took a few hours and one or two appearances and others that drag on forever. No way to average.
    It is up to you to decide whether or not you want to and have the stomach to do this type of work.
    Sometimes they settle, other times it's a fight. You may need to do tons of research and documentation to backup what you say. Be prepared for the "how do you know this defect didn't occur after the Buyer took possession" or the "can you prove this was done/not done by the contractor".
    BTW, you aren't proving anything, That's the attorneys job. Even though some like to try to put it off on you.

    www.aic-chicago.com
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  5. #5
    A.D. Miller's Avatar
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    Default Re: witness fees

    WO: SP said it all.


  6. #6
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    Default Re: witness fees

    Be sure to get fees up front if working for a lawyer unless it is a big firm.
    Rember if it was'nt for lawyers we wouldn't need lawyers
    I love expert witness good money and fun work.

    But if have never been in a deposition you shuld watch one first, perferablely one with a tough att. It can get very nasty


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    Default Re: witness fees

    Also require a minimum of hours. Such as xxx dollars per hour with a 3 hour minimum. Most cases I've been involve in are settled while your waiting. That way you'll still be paid even though you did not testify.

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  8. #8
    wes owens's Avatar
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    Default Re: witness fees

    Thanks for the info.

    Just out of curiosity, what do you guys charge and does it vary by location?

    The reason I ask is that I know sometimes inspection fees can vary depending on location.


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    Default Re: witness fees

    Quote Originally Posted by wes owens View Post
    Thanks for the info.

    Just out of curiosity, what do you guys charge and does it vary by location?

    The reason I ask is that I know sometimes inspection fees can vary depending on location.
    You have mail!

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

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    Default Re: witness fees

    Hi Scott,

    I tried to reach you on the back channel but something is turned off.

    Could you please send me that fee schedule too? I've used some fee determinations in the past but wasn't sure if I was close or not.

    Thanks


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    Default Re: witness fees

    Quote Originally Posted by Ben Christianson View Post
    Hi Scott,

    I tried to reach you on the back channel but something is turned off.

    Could you please send me that fee schedule too? I've used some fee determinations in the past but wasn't sure if I was close or not.

    Thanks
    Wow! This morning I had 17 request for fee schedules, etc...... It took me over an hour to send them all out. Sorry, I just can't do it any longer. So I'm going to post what my fees are for litigation support work.

    What I charge is the following:

    $175 per hour. This is for reviewing documents, site work, research, travel time, etc. Once declared an expert this fee goes to $225 per hour.

    $225 per hour for any court related time, with a 4 hour minimum ($1,000 per half day.. clock starts at 8am till Noon and then 1 pm to 5 pm). This includes depositions and once I have been declared an expert this hourly rate goes into effect. So if they want me to be at the courthouse at 11 am, Noon, etc., they will endup paying me for the entire day.

    I also require a $1,500 to $2,500 retainer if my services will be needed for an extended period of time. This is in addition to my hourly fee and it is non-refundable.

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

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    Default Re: witness fees

    Thank you sir.

    Ben


  13. #13
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    Default Re: witness fees

    I charge $175 hr report writing and inspection time on site,
    $200 for Meetings and preparing with attry. or by myself for for Depo. or Court appearace and Document review.
    $250 for Depo. and Court time

    All 2hr miminum

    $75 travel time - more than 75 mile form office


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    Default Re: witness fees

    My fees are a tad higher than Scotts, which are definetly the going rate around here.
    WTTW: Always have your client's attorney retain you, not the client because then all of your work is privilaged, which means folks have to pay for them and you don't want your client calling you late at night to discuss your case.
    (been there, done that)

    Scott: I raised my retainer to 3K about 2 years back. You can burn through 2K pretty quick when FedX delivers 250 lbs of discovery on your doorstep.

    "What's the ditfference between a good lawyer and a bad lawyer?"
    "A bad lawyer can let a case drag on for several years. A good lawyer can make it last even longer."

    What I've learned in 20 years: "You don't do squat until you have a signed contract and the retainer check has cleared your bank."
    "Never open your mouth at a deposition until THEIR check is in YOUR pocket." (3 hr. min)

    The depo is a chess match and you better be on your toes because one of the most popular classes in law school is "How to conduct a deposition and make the other side's expert witness look like a idiot."

    Jerry McCarthy
    Building Code/ Construction Consultant

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    Default Re: witness fees

    Quote Originally Posted by Jerry McCarthy View Post
    My fees are a tad higher than Scotts, which are definetly the going rate around here.
    WTTW: Always have your client's attorney retain you, not the client because then all of your work is privilaged, which means folks have to pay for them and you don't want your client calling you late at night to discuss your case.
    (been there, done that)

    Scott: I raised my retainer to 3K about 2 years back. You can burn through 2K pretty quick when FedX delivers 250 lbs of discovery on your doorstep.

    "What's the ditfference between a good lawyer and a bad lawyer?"
    "A bad lawyer can let a case drag on for several years. A good lawyer can make it last even longer."

    What I've learned in 20 years: "You don't do squat until you have a signed contract and the retainer check has cleared your bank."
    "Never open your mouth at a deposition until THEIR check is in YOUR pocket." (3 hr. min)

    The depo is a chess match and you better be on your toes because one of the most popular classes in law school is "How to conduct a deposition and make the other side's expert witness look like a idiot."
    Thanks Jerry and I agree with having the attorney hiring you.

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

  16. #16
    A.D. Miller's Avatar
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    Default Re: witness fees

    "What's the ditfference between a good lawyer and a bad lawyer?"
    "A bad lawyer can let a case drag on for several years. A good lawyer can make it last even longer."
    JM: Yessir.

    The depo is a chess match and you better be on your toes because one of the most popular classes in law school is "How to conduct a deposition and make the other side's expert witness look like a idiot."
    JM: And, not just in law school, but forever thereafter in seminars, training DVDs, books, et al. Fortunately, the same applies to training available to experts, which by no coincidence is often taught by the same people.


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    Default Re: witness fees

    Quote Originally Posted by Jerry McCarthy View Post
    WTTW: Always have your client's attorney retain you, not the client because then all of your work is privilaged,
    Quote Originally Posted by Scott Patterson View Post
    Thanks Jerry and I agree with having the attorney hiring you.
    Which is why I also had, and have always recommend that all HIs do, in the footer on each page of my report the wording "This is work product ... " as the reader of that report does not know if it is or not and most are not willing to take the chance and push the issue, because if they push the issue they may also end up losing what they were trying to claim as privileged information. It is, after all, a game, and one simply tries to 'out game' the other.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
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  18. #18
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    Default Re: witness fees

    It is, after all, a game, and one simply tries to 'out game' the other.
    JP: Agreed, if rephrased to read " . . . and one simply out-games the other." There is do or don't do. There is no "try".


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    Quote Originally Posted by Jerry Peck View Post
    It is, after all, a game, and one simply tries to 'out game' the other.
    Quote Originally Posted by A.D. Miller View Post
    JP: Agreed, if rephrased to read " . . . and one simply out-games the other." There is do or don't do. There is no "try".
    10-4 good buddy.

    It is, after all, a game, and one simply 'out games' the other.

    (Note, in reality, though, it is as I originally stated as both sides "try to" out-game the other, but only one side can be successful. )

    Jerry Peck, Construction / Litigation Consultant
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  20. #20
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    Default Re: witness fees

    Note, in reality, though, it is as I originally stated as both sides "try to" out-game the other, but only one side can be successful.
    JP: Agreed. That is why I never go into one of those situations without a literal "knowing" that I will prevail. It is a very high stakes game that I refuse to lose. Not that it could never happen . . . but, it has not so far.


  21. #21
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    Default Re: witness fees

    Just so you guys know, the Department of Justice would be all over you for discussing in the open or there being evidence of disclosing in private the your fee structure to another person in the same industry.

    It is a far reach in our minds but they view it as price fixing.

    I saw that in a memo from a company lawyer when I worked at the corporate offices of one of the largest home inspections companies in the U.S..

    Just so you are aware. I'll be quiet for another 2 years.

    Jim Prudhomme


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    Default Re: witness fees

    Jim, you need to wake up, ane come vist / post more often. We've missed you.

    I wondered why I hadn't heard from Scott and Jerry for awhile. Dang DOJ probably threw them in jail for the last six months (how old this thread is).

    Sounds like a crock to me.

    Price fixing amongst such a bull headed individualist group as home inspectors tend to be is virtually impossible.

    And in the grand scheme of life, the DOJ has much bigger fish to fry than a few home inspectors saying how much they charge without saying everybody else should charge the same.

    But then again, it ddid come from a "Company Lawyer".

    But hey, I slept at a Holday Inn Express last night!!!!


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  23. #23
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    Default Re: witness fees

    This is a sincere question and is something I have often wondered...What makes you expert witnesses .....expert witnesses? I don't mean the Webster verison...in mean in reality.

    The old joke is that it is someone from out of town and carries a briefcase but I know it is more to it than that!


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    Default Re: witness fees

    Quote Originally Posted by James Duffin View Post
    This is a sincere question and is something I have often wondered...What makes you expert witnesses .....expert witnesses? I don't mean the Webster verison...in mean in reality.

    The old joke is that it is someone from out of town and carries a briefcase but I know it is more to it than that!
    In the litigation word, you are not considered an "Expert" until you are declared as such by the court. I offer litigation support to clients and if need will testify as an "Expert" once I'm declared as such by the court.

    Quote Originally Posted by Jim Prudhomme
    Just so you guys know, the Department of Justice would be all over you for discussing in the open or there being evidence of disclosing in private the your fee structure to another person in the same industry.
    The key is that you must as a group conspire to fix the rate or fee. Kind of like what real estate agents do all across the country. Advertising your rates, talking about your fees or publishing your fees does not fall into to the price fixing scenario.

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

  25. #25
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    Default Re: witness fees

    Quote Originally Posted by Jerry Peck View Post
    Which is why I also had, and have always recommend that all HIs do, in the footer on each page of my report the wording "This is work product ... " ....
    Jerry, do you mind completing that sentence? Thank you.


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    Quote Originally Posted by Bert de Haan View Post
    Jerry, do you mind completing that sentence? Thank you.

    This was the footer on every page of my reports, the date was entered automatically by my program between the two ():
    ŠThis report is work product and is copyrighted by the company shown above (INSPECTION SERVICES ASSOCIATES, INC. ) as of the date of this report (). Duplication by any means whatsoever, including sharing access to a protected copy, is prohibited without prior written permission and authorization from the company shown above. Duplication of, use of, or reliance on this report in any way for any purpose whatsoever has the effect of agreeing to the terms and conditions as set forth in the Authorization and Contract for Services, included herewith as numbered pages 3 and 4 of the original report, which are included for the users review, please do so. Unauthorized duplication of, use of, or reliance on this report has the effect of all parties agreeing to hold harmless, individually, jointly, and/or otherwise, this inspector, the Company, their successors and assigns AND IS A VIOLATION OF FEDERAL COPYRIGHT LAWS.



    Jerry Peck, Construction / Litigation Consultant
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    Default Re: witness fees

    This was the footer on every page of my reports, the date was entered automatically by my program between the two ():
    ŠThis report is work product and is copyrighted by the company shown above (INSPECTION SERVICES ASSOCIATES, INC. ) as of the date of this report (). Duplication by any means whatsoever, including sharing access to a protected copy, is prohibited without prior written permission and authorization from the company shown above. Duplication of, use of, or reliance on this report in any way for any purpose whatsoever has the effect of agreeing to the terms and conditions as set forth in the Authorization and Contract for Services, included herewith as numbered pages 3 and 4 of the original report, which are included for the users review, please do so. Unauthorized duplication of, use of, or reliance on this report has the effect of all parties agreeing to hold harmless, individually, jointly, and/or otherwise, this inspector, the Company, their successors and assigns AND IS A VIOLATION OF FEDERAL COPYRIGHT LAWS.
    Jerry, unless pre-agreed to otherwise, if you consider the report to be "work product", I believe it is owned by the person who hired you to do the work, not you.

    Last edited by Lisa Endza; 09-26-2010 at 06:48 PM.
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    Default Re: witness fees

    Lisa
    I believe you are correct.

    ' correct a wise man and you gain a friend... correct a fool and he'll bloody your nose'.

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    Quote Originally Posted by Lisa Endza View Post
    Jerry, unless pre-agreed to otherwise, if you consider the report to be "work product", I believe it is owned by the person who hired you to do the work, not you.
    Nope, not from everything I've been told by attorneys.

    It's like me writing a book, then selling it to you, I still own the copyright, you still have the book, you are not allowed to duplicate the book by any means, and that may because I charged by the hour and not a set fee - they paid for "the time" - my clients paid for my time and knowledge.

    No attorney wanted to question it, quite possibly because if they questioned it, that same question would arise for their work product, and then it would be discoverable, or so the thinking goes - no one wanted to open Pandora's box and find out.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  30. #30
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    Default Re: witness fees

    My lawyer has the same opinion as Jerry's. Ownership of the report has been the topic of numerous threads on this board. According to my contract, I retain all rights to my report. I give permission to my clients to use this report for that transaction and may not be used by any other party without written permission from my company.

    //Rick

    Rick Bunzel
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  31. #31
    George Wells's Avatar
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    Default Re: witness fees

    Quote Originally Posted by wes owens View Post
    Questions:
    Are you entitled to witness fees or is that part of the deal and you just get to spend your time in court for free?
    You are a professional providing a service. You should charge a fair fee for your service.

    You do not have to work for free. I had a case a while ago in which the lawyer for my client expressed dismay because I expected to be paid. I was subpoenaed but refused to go until we had an understanding of how much I would be paid. I had also asked for a retainer. He said "I thought you told my client you would be willing to testify on his behalf". "Yes, of course", I said to him but this is how I earn my living and expect to be paid. I asked him if he was working for free. He responded "Well, no". My client did not want to pay me so I did not testify. I never heard whether they won or lost.


  32. #32
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    Quote Originally Posted by George Wells View Post
    I was subpoenaed but refused to go until we had an understanding of how much I would be paid.

    That very well could land you in jail (refusing to do as ordered by the court).

    What it comes down to is WHAT you are being expected to talk about.

    Are you being deposed as the Records Custodian? If you, you gotta go ... BUT ... your only obligation is to state whether or not THAT report is THE report* produced for THAT inspection at such-and-such-place and performed at such-and-such-time.

    Anything more than that and you are no longer being deposed as the Records Custodian, you are being asked your professional opinion, and THAT ... well, THAT they get to pay your going rate for.

    *Or that the report you are looking at is a 'true and accurate copy' of the report being asked about - that answer turns on whether or not you are actually looking at the "original" report or a "copy" of that report, and being as your client has the only "original" report you are only looking at a "copy" of the report. You will blow the opposing attorney's mind when they ask you "Is this report the report for the inspection done at such-and-such address on such-and-such day?", and you answer "No."

    After a little cat and mouse game the attorney should quickly realize that the question they are asking should be "Is this report a true and accurate copy of the report ... " ... after you flip through the copy of the report you answer "From briefly flipping through the report it appears to be a true and accurate copy of ... " - note that you have not yet said that it "is" a true and accurate copy - and another round of cat and mouse begins until the attorney figure out what they need to ask ...

    Remember, if you say "Yes." to "Is this a true and accurate copy?", and someone made changes to it, you have just stated that it is a true and accurate copy. The only ways to know if it is a true and accurate copy is for you to: a) compare the copy to the original in a side-by-side comparison; b) for *you* to have printed the copy from the same electronic file *you* printed the first report from, meaning the *you* *know* the copy is exactly the same as the original; c) for *you* to have copied what *you* *knew* was a true and accurate copy - such as if you use a 3-part report and you photo copied your copy of the original report.

    It is a game, and you need to make sure that *you* only answer the questions as *you* *know* them to be true and factual, and if the opposing attorney does not ask a question which you can answer 'Yes.' and *know* it to be true and factual then the answer is something other than 'Yes." I.e., something such as 'No.', or 'I do not know if it is."

    When you say 'Yes.' the attorney moves on to the next question, when you say anything else the attorney will have to figure out what to ask to get a 'Yes.', or accept something less, and accepting something less typically does not help their case.

    Others may have also had positive experiences playing the game, others may not play the game the same way, there may still be others who may say not to play that game at all.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  33. #33
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    Default Re: witness fees

    QUOTE-Others may have also had positive experiences playing the game, others may not play the game the same way, there may still be others who may say not to play that game at all. __________________END QUOTE - JERRY PECK

    Wes......................

    I strongly recommend you step back from expert witness opportunities,
    until you can demonstrate that you are prepared for such work.
    Most standards of practice are written with the intend that Home Inspectors ARE NOT Experts,
    and with good reason.

    If I'm not mistaken Jerry McCarthy participated in the writing of the CREIA Standards as well
    as many of it's revisions.

    I don't know Scott, Mr. Peck or some of the others here, but I know Jerry McCarthy....
    And if you are excepted as an expert in court - you can assume that
    you may be facing some one with Jerry's vast expertise.

    All kidding aside - Jerry and Scott and Mr. Peck - get off thread and start takin shop -
    But relative to your question - do you have the background to confront a lawyer who
    has been prepped and guided by Jerry McCarthy.
    If you do, then I would say your share that honor with guys in the top 1% of the home inspection field.

    I know an inspector who went up against a renowned fireplace instructor (who Jerry knows well,
    and who's name I don't have permission to use) but I can tell ya.......... it was not a pretty sight.

    My own personal motto is - SETTLE OUT OF COURT.


    mf

    Last edited by matt faust; 11-20-2010 at 06:34 PM.
    Matt Faust
    Real Estate Inspector

  34. #34
    George Wells's Avatar
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    Default Re: witness fees

    Quote Originally Posted by Jerry Peck View Post
    That very well could land you in jail (refusing to do as ordered by the court).
    That's true. I did not mean to suggest that it would be appropriate to disobey a court order. There are right ways and wrong ways to handle these kinds of situations. Knowing the difference can mean the difference between spending the night in jail or in your own bed.

    It is, as you said, very much a game. In fact, your example of a "copy" reminds me of something I read many years ago in which the person on the witness stand was shown a photocopy of his signature and when asked if it was his signature he responded "no". After some discussion, the witness finally said that it was a "reasonable facsimile" of his signature but it was not his signature.


  35. #35
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    Default Re: witness fees

    If I'm not mistaken Jerry McCarthy participated in the writing of the CREIA Standards
    That's a horrible accusation. Does everyone here have to be so mean?

    Lisa Endza
    Director of Communication
    InterNACHI

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