Melendez-Diaz v. Massachusetts

Greetings,

Here's the language from my contract

B. Testimony. Notwithstanding any other provision herein, in the event Consultant is called to testify in connection with any matters pertaining to this engagement or services performed hereunder, Consultant’s time spent in transit to and from, preparation for, attendance upon and giving of such testimony shall constitute consulting services for Client pursuant to this agreement and, Client shall compensate Consultant for such time and associated expenses according to Exhibit A hereto.

As used in this paragraph, “called to testify” includes, not by way of limitation, testimony in court, grand jury or congressional testimony, deposition, testimony, responding to or resisting interrogatories, responding to or resisting requests for production or requests for admission and, responding to or resisting other forms of written discovery, appearance pursuant to subpoena, and testimony by affidavit, attestation and/or sworn statement.

The billing rate for Testimony is just under twice our normal analysis rate.

We're flexible on a lot of this. For example, if I can do billable work while on the plane then the rates get adjusted. This is one argument for flying business class - I can do productive work in business and so the additional cost of the business fare is offset.

-David

First of all, I think that this is a sound verdict. The Constitution is clear that the accused has the right to confront the accuser and, increasingly, forensic testimony is part of that picture. And to the extent that such testimony represents the opinion of the expert, the opposing side has a right to question the expert as to how the opinion was reached.

I was involved in a case where the expert who testified was not the person who actually performed the tests and interpreted the test results. In reality, the "expert" was testifying to the opinion and observations made by another. There were obvious reasons for this as the person who actually performed the tests and rendered the opinion did not make a good impression on the stand. Tough! While hearings and trials are about theatre as often as they are about evidence, no one should render an opinion that they aren't prepared to defend.

As for fees, my fee applies to every business hour that I am out of the office in the courtroom, testifying or not. That is no different than the attorneys. I only charge for hours outside the courtroom that are spent in the preparation of testimony or the analysis of the testimony of others.

My testimony rate is $50 higher than my forensic consulting rate. Just like Sean, I bill for the time I'm at the courthouse, not just for time on the stand.

Back when I worked for Police, I once spent 3 days waiting in a city 1000 miles away from where I lived to give my testimony. There was a mistrial on a silly technicality, and I came back 6 months later for another 3 days. That's an extreme example, but in my experience, you're going to be spending at least a couple of hours waiting at the courthouse before you get on the stand unless you're lucky enough to be the first witness for the day. Of course, forensics doesn't usually get called first, so whenever I was first witness of the day, I'd usually spent the afternoon before in a witness room waiting to be called.

EDIT
I'm also in favor of the accused having the right to cross the examiner. I would say for expediency sake that it should be a right to be invoked, not a requirement that you can't tender the evidence without the person present in all cases.

My testimony rate is $50 higher than my forensic consulting rate…

Only $50 per hour extra to testify? I double my usual-and-customary rate. I consider testifying "hazardous duty."

I know that it is common practice to charge more for testimony than for analysis.

I don't.

In my opinion, testimony is both the consequence of and the substantiation of the analysis. By the time that I am called to testify, I should be well versed in what I intend to say and how I will defend it.

Besides, I enjoy testifying; it sharpens my analysis. It is in testifying, especially cross examination, when you really discover how well your theories stand up.

My testimony rate is $50 higher than my forensic consulting rate…

Only $50 per hour extra to testify? I double my usual-and-customary rate. I consider testifying "hazardous duty."

Having had my evidence tested in court so many times, I don't consider it hazardous. I think that having your work reviewed by the opposition is the best form of peer review. Back when I worked for police, we had all cases internally reviewed, but that was a cursory look at your notes in almost all cases, not a full pull and review. Obviously review by the opposite side's expert is going to be more thorough.

I also enjoy explaining technical stuff to a jury in language they understand. Makes a nice change from my usual with CF guys talking computer speak all day.