Reasonable expenses for an expert witness deposition surely include the expert’s travel time, airfare and hotel accommodations. Right?
It’s true that litigators are free to make their own financial arrangements regarding the payment of an expert’s fees and deposition-related charges. Charges for travel time, business-class airfare, meal allowances, and accommodations for multiple nights at business-class are all permissible features of the expert’s financial package – subject, of course, to professional ethical restrictions designed to ensure the integrity of the expert’s testimony.
However, this laissez-faire approach to expert witness compensation does not apply when one party seeks a court order obligating the other side pay for some, or all, of an expert witness’s expenses. In those situations, courts will scrutinize the expert witness’s expense statement and apply a reasonableness standard to any sort of cost-shifting request.
In federal litigation, this type of inquiry most often arises in two circumstances:
In both situations, federal courts will ask whether the costs associated with obtaining the expert’s deposition testimony are reasonable. Courts typically evaluate for reasonableness the following cost items in the expert’s expense statement:
- time spent preparing for the deposition;
- time spent testifying at the deposition;
- time spent reviewing deposition testimony and preparation of the errata sheet;
- time spent traveling to and from the deposition;
- costs of airfare for travel to and from the deposition, for overnight hotel stays, for meals, and miscellaneous costs such as parking and rideshares.
As a general matter, travel expenses are accepted as part of the reasonable costs associated with obtaining an expert’s deposition testimony. However, the two travel-related items above should merit heightened scrutiny in the current technology-driven era of virtual hearings and remote depositions. They are, to a certain extent, optional in many instances.
It’s worth asking whether, in 2023 and beyond, any of the above-mentioned travel expenses can be considered “reasonable” given the easy availability of remote depositions to obtain the expert’s testimony?
Will it matter whether or not judges in a particular jurisdiction have gone on record – whether through amended court rules or scheduling orders – calling for remote depositions as a preferred means of moving civil case matters along?
Will it matter whether or not a party objects to an in-person deposition at the time it was noticed by the opposing side?
These seem to be fair questions to ask of parties in modern civil litigation. An expert witness’s expense report that includes charges for a cross-country flight and hotel accommodations might be deemed unreasonable in a small-dollar case. A “nice to have” in-person deposition, but neither necessary nor reasonable.
Experts Are Believable on Video Screens
A leading reason why some litigators prefer to depose crucial witnesses – including experts – in-person is their belief that witness credibility is best evaluated when the attorney is in the same room as the witness and able to closely observe the witness’s demeanor and body language. Similar reasoning also leads many experienced litigators to insist on live testimony in the courtroom whenever feasible. Live testimony, they believe, has more impact with jurors than video recordings or deposition transcripts.
These assumptions were recently challenged in a July 2023 dissertation published by the University of Mississippi. In Does Convenience Come With a Price: The Impact of Remote Testimony on Expert Credibility and Decision-Making, the author found only negligible differences in credibility and weight that a jury would assign to an expert’s testimony when the testimony was delivered remotely instead of in-person within a courtroom.
“[The] results of this study indicate that psychological experts can use remote testimony and expect their credibility and effectiveness on the stand to remain largely intact, with minimal risk that the method of testimony will influence ultimate legal decisions,” the paper claimed. “Thus, given the dual benefits of potential cost-savings (to the defendant or the court) and greater accessibility of experts, it is recommended that remote testimony be a first-choice consideration.”
Effective Voir Dire Can Bolster Remote Testimony
The author suggested that, to mitigate for any possible juror bias against remote testimony, attorneys should consider probing for this type of bias during voir dire. Attorneys might ask:
- “How familiar are you with remote communication methods, such as videoconferencing software or conference calls?”
- “Do you think your comfort level with these technologies could change the way you view professionals who use them?”
- “An expert in this case will be testifying with videoconferencing software, like Zoom. Do you believe you can view their testimony objectively and make fair decisions in the case even though they are not physically in the room?”
Attorneys who plan to present remote testimony at trial should consider removing potential jurors who exhibited a bias against remote testimony or who may, for various reasons, be unfamiliar with modern telecommunications technologies.
Another strategy suggested in the dissertation is to establish during the remote deposition itself that it is not uncommon for experts to testify via remote technologies. For example, an attorney might ask the expert questions such as: “Is it typical for psychological experts such as yourself to testify remotely?” and “Does the fact that you are testifying remotely change your testimony today or your opinion regarding the defendant?”
These types of questions, the author asserted, may increase the likelihood that remote expert testimony will be found credible and given adequate weight by juries when presented in a courtroom setting.
We’ve written often to make the point that remote depositions save time for litigators and money for their clients. Add to cost considerations the fact that expert witnesses are equally believable on video screens as in-person and the case for remote depositions becomes even more compelling.
