Expert Witnesses and How They Add to the Cost of Litigation

Expert Witnesses Cost of Litigation Personal Injury Lawyer

What are Expert Witnesses?

Let us back up for a moment. The Illinois Supreme Court Rules recognize three types of witnesses. Under Illinois Supreme Court Rule 213, there are “lay witnesses,” controlled by ISCR 213(f)(1). These are, as you would expect, laypersons. They can testify about what they observed or know to be a fact. A typical example of a lay witness would be the eyewitness to a car crash or the shopper next to you who sees you slip on the grape in the produce section. They do not claim to have any specific expertise about the matters to which they testify.

Another category is an “independent expert witness,” defined under 213(f)(2). These are usually treating doctors. They are not specifically paid by the party to testify, but they do have specific knowledge.

The final category is defined under 213(f)(3), and that is “controlled expert witnesses.” These are what you think of when you hear about an “expert witness.” Think of a DNA expert in a criminal trial, or a traffic crash reconstructionist in an auto crash. In many personal injury and medical malpractice cases, this is a doctor hired by the party to provide a specific set of opinions that the treating doctor either cannot or will not provide.

Why an Expert?

Let’s take the typical personal injury automobile crash. You get rear ended while stopped for a light. You complain your vehicle is pushed into the vehicle in front of yours and are treated for neck injuries. The insurance carrier for the driver who hit you accepts that their insured screwed up and was negligent. But it contests that your injuries were related to this crash.

So how do we get to experts?

Assume your doctor says there is a causal connection between this crash and the injuries you sustained.

Retained experts could become involved in several ways.

One way would be for the insurance company and law firm representing the other driver (usually an in-house firm), to name an expert to opine that the impact of the crash could not have caused your significant injuries due to biomechanical issues. A biomechanical expert will use science, some would say pseudo-science, to justify that a so-called “low speed collision” does not cause significant injury.

Another way an expert could be involved would be either if you decide you need to counter the expert’s testimony by retaining your own biomechanical expert.

Or you may decide an accident reconstructionist could help provide an opinion that you were hurt in this crash.

Who Pays for Experts?

Each party pays for his or her own experts.

Therein lies the problem for many plaintiffs.

Experts can often cost upwards of $500 per hour. It is not unusual with review of materials, deposition preparation, deposition, and trial for one expert to cost a party upwards of $25,000 or even up to or over $100,000. Think about that; your attorney must advance that sum of money to get your case to trial. If he wins your case, he must reimburse himself out of the funds. If he does not win your case, you are technically on the hook for it, since attorneys cannot loan clients funds under our ethical rules.

But why is that so bad if the other side has to pay for experts too?

Because insurance companies and large corporations have nearly unlimited funds and plaintiffs attorneys do not.

Do Insurance Companies Name Experts Just to Increase the Costs of Litigation?

Some do!

Often, one of the tenets of how a particular insurer or law firm that represents an insurer operates is making things take as long as possible and forcing the plaintiff to take risks, both in going to trial by not making reasonable offers, and by naming expert witnesses. In naming experts, insurance defense lawyers dare the other side to either name its own experts to counter that testimony, which costs money, or risk that the jury will not take the expert’s testimony seriously.

Just the knowledge that certain insurers or law firms will likely name experts on cases causes many plaintiffs lawyers, who are paid on a contingency basis (they only earn a percentage of the recovery and are not paid unless they win or settle the case), to choose to not take cases that are not “sure things,” because they cannot afford to risk tens of thousands of dollars per case.

Do Jurors “Buy” What Experts are Selling?

Sometimes they do and sometimes they don’t.

Often, the experts who testify for defendants testify almost exclusively for defendants. Think about it; they give helpful testimony, make a boatload of money, and the insurer likes that. The insurer hires them for another case. And another.

In almost every case where an expert is named, he or she is a “usual suspect” or “frequent flyer.” We know these folks, we know what they will say without asking, and we also know how much they earn from being professional experts. One expert I deposed frequently testified to earning about $500,000 annually just testifying for defendants.

Plaintiffs often must scramble to find qualified experts, since often the defense attorneys and insurers have corralled all of the good ones. They cannot testify for plaintiffs without upsetting their “regular” employer. As in most things, follow the money. Defense experts stay defense experts because the money is incredible. So their “opinions” tend to toe the line of what is wanted by the folks paying them.

Plaintiffs lawyers spend much time showing the jury how much money the expert for the defense is earning. Frankly, while this should be a tipping point, most jurors I speak to afterwards advise me that they just don’t put a lot of stock into this. They are not offended by the expert who is earning half a million a year testifying for defendants. It just does not resonate. This puts plaintiffs into a difficult position, as they must finance costly cases, hire experts, and take the time to depose these experts, often hiring their own costly experts, with no guarantee of recovery for their clients.

One More Thing

Experts also put a chill into those who want to file lawsuits themselves. No one can walk in off the street and navigate the legal system without some hiccups. It is exponentially more difficult when dealing with expert testimony, which is highly specialized and costly.

Similarly, it causes many plaintiffs lawyers, who are paid on a contingency basis (they only earn a percentage of the recovery and are not paid unless they win or settle the case), to choose to not take cases that are not “sure things,” because they cannot afford to risk tens of thousands of dollars per case.


  • What are expert witnesses
  • What type of testimony can experts provide
  • Why are they expensive
  • Who pays for them
  • Why is this an advantage for defendants and insurance companies

Contact Chicago Personal Injury Lawyer Stephen Hoffman

If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has nearly 30 years of legal experience and has collected millions of dollars for his clients. He has been named a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited.

Stephen handles personal injury and workers' compensation claims on a contingency fee basis, which means you don’t pay anything upfront and he only gets paid if you do. Don’t wait another day, contact Stephen now.

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