Expert testimony: Know your rights.   Some attorneys are using a strategy of subpoenaing physicians for fact testimony and then asking them opinion questions that amount to expert testimony. To fight this subpoena abuse, here’s a primer on expert witness court precedent that I wrote several years ago. In general, if you are subpoenaed for a case as a fact witness, you do not need to feel compelled to give expert opinion based on your findings.  Although it is no guarantee and in order to make sure there is no misunderstanding, I send a letter like the one below.

RE: {case name, number}

Via: [Email][FAX][USPS]

Dear []

I was recently subpoenaed by your office. In the past, there have been several incidences where there has been a misunderstanding whether attorneys are requesting factual or expert witness testimony. I understand my duty to provide factual testimony. In the event, you ask me to provide any response or responses that calls for an opinion or medical conclusion, that will be considered to be expert witness testimony. Receipt of this letter will confer your acknowledgement that in the event you request expert witness testimony, you and/or your agency will be responsible for bills for my time. As a courtesy, I am sending my fee schedule for your review.

My fee is $[] an hour for consultation and/or expert testimony. Expert services include review of records, telephone and or office conferences with attorney(s) or other relevant individuals, and preparation for deposition and trial if indicated. The minimum fee bill will be $[].

As is standard, all reasonable expenses incurred will be billed to your agency or firm. If travel is necessary, travel time will be billed at $[]per hour. If testimony is required the following charges apply. If I am called to testify in the morning, I assume that testimony will involve a minimum of eight hours, and you will be billed for eight hours at $[] per hour. If I am called in the afternoon, I assume that testimony will involve a minimum of four hours and you will be billed for four hours at $[] per hour. If meetings or trials are subsequently canceled on short notice your agency or firm may be billed for the time scheduled.

Thank you for your understanding. Please feel free to call me if you have any questions.

Best regards,

To Read the article Source: Legal Ease: March 08 – Emergency Physicians Monthly