Expert witnesses and lawyers: book a vacation trip starting the same day as any trial

Life of a software expert witness: I carefully arranged my calendar this fall so as to be available at four scheduled trials.

  • Trial 1: moved to April 2020
  • Trial 2: settled two weeks prior
  • Trial 3: canceled by the judge, who promised to inform the parties, perhaps early in 2020, regarding a new date
  • Trial 4: case stayed due to withdrawal of counsel on one side (not the folks who hired me)

Instead of the excitement of talking to 12 interested people (upgrade from the usual 0), traveling to a different part of the country, and working intensively with smart people, it is a week or two of the home-based routine with absolutely nothing on the calendar (having refused all invitations from friends and family for various activities during the trial block).

My latest idea: actually schedule an interesting mostly refundable trip starting the very same day as the trial. If the trial is canceled, take the vacation trip. If, by some miracle, the trial occurs on the scheduled day, absorb whatever refund/change fees are imposed by the airline and hotels. The likelihood of the trial going forward on the scheduled week and actually having to pay any fees, based on my experience, is at most one quarter. If the fees for canceling the trip are $500, therefore, the statistical cost of implementing this strategy is only about $125 per trial.

Readers: Where else can this strategy be employed? Who else has to block 1-3-week periods of time that probably won’t be needed after all?

Posted in Law

10 thoughts on “Expert witnesses and lawyers: book a vacation trip starting the same day as any trial

  1. You should start a vacation pool with other litigation professionals. Then when your trial gets cancelled, you can swap with another who’s trail actually occurs on schedule.

  2. Become an expert blog commenter. Enjoy the excitement of talking to no interested people & having no friends & family to refuse invitations from. At least 48 jurors will be able to be with their friends & family.

    • I have testified at trial in both kinds of cases (but, as noted in the original post, I have also prepared for additional trials in both kinds of cases that never happened!).

  3. Do you charge any rate or cancellation fees to the law firms hiring you, whether or not it does in fact go to trial?

    If not it just sounds like the lawyers are better at contract negotiation than you are ( no surprise ).

    • That’s a great idea, baz, but it is not conventional.

      The best people in this industry have sometimes managed to get away from the strict bill-for-hours-worked convention. One of my mentors, Steve Ward (see ), used to charge a minimum monthly “lights on” fee of X hours times his hourly rate, whether or not the hours were used.

      Why not break convention? Academic economists asked a Chicago restaurant owner about this. Why not crank up the prices for Friday and Saturday nights so that there is not a multi-month waiting list? The owner responded that he didn’t want people to go away saying “That wasn’t worth it.”

      It may be that the risk of cancellation is already priced into the expert’s hourly fee. My friends generally charge $450-625/hour for their work as software patent experts. They would not command this hourly wage for full-time work at a software development firm. So perhaps they are already being paid for the statistical risk that the work ends abruptly and unexpectedly.

      (Another way to look at this is that there are multiple ways to get paid additional amounts. One is to ask for the kind of cancellation fee you’re talking about, which the clients wouldn’t have ever seen and might have questions regarding. The other would be to raise one’s rate by $25 or $50/hour. The latter is typically easier. Some customers are passionate, for example, about not being billed for “non-working travel time”. Some experts that I know are passionate about being paid for their “door-to-door travel time” (if booked on American Airlines with a connection, this could end up being four days times 24 hours!). The two sides could sit down and fight about their passions, but it would probably be simpler for the expert to raise his/her/zir fee by $20/hour and accept the customer’s policy.)

    • One sees the same thing with airline tickets. Customers don’t want to pay for First Class tickets, despite the facts that (a) the difference over economy with extra legroom and a bag is likely minimal in the context of the overall expert budget, and (b) First Class is the new Economy in terms of the delivered product. Rather than raise eyebrows by billing a customer for a First Class ticket, therefore, I get a quote for an Economy fare and then bill for that, paying the extra cost myself whenever it makes sense to go First or Business.

      Form can be more important than substance. In a recent software trade secret case, the cost of which I am afraid to add up, I did get one question about a bill from the law firm. They were seeking receipts for a handful of days on which I parked my car in their office building (at $42/day).

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