Insights
Expert deposition fees: who pays, and what is reasonable
The general position is that the party taking an expert's deposition bears the expert's reasonable fee for testimony time. The disputes are almost never about that principle. They are about what counts as testimony time, and what counts as reasonable.
The general shape, and where the states differ
Broadly, the deposing party pays the expert's reasonable fee for the time spent testifying. California addresses this at Code of Civil Procedure section 2034.430, which deals with the reasonable and customary hourly or daily fee, which party bears it, and tender of the fee. Washington and Oregon address the question through their own provisions.
The differences between the three are enough that carrying an assumption across a state line is unwise, and the details in any matter are for counsel to confirm against the governing rule and the operative order. This site does not calculate any figure or deadline.
The practical budgeting point is the one counsel most often overlooks: an expert's deposition is largely a cost that falls on the opposing party rather than on the retaining one. That matters when assessing what a matter will cost you as distinct from what it will cost in total.
What counts as testimony time
This is the first recurring dispute. Testimony time is uncontroversial; preparation time, travel time, and time spent reviewing records specifically for the deposition are all treated differently under different provisions and by different courts.
The disagreement is usually genuine rather than tactical. An expert who has not looked at a forty-thousand-page record for eight months cannot testify competently without re-reviewing it, and from the expert's perspective that time is caused entirely by the deposition. From the deposing party's perspective it is the retaining party's expert getting back up to speed.
The workable practice is to address it in advance rather than to litigate it afterwards: establish before the deposition is noticed what the expert will charge for, what the deposing party accepts, and what will be tendered. Most of these disputes exist because nobody had the conversation.
What makes a fee reasonable
Generally what comparable experts in the same discipline and market charge for the same work, together with the expert's own consistency — an expert who charges one rate for review and a materially higher one only for depositions taken by opponents invites a challenge.
Consistency is the element within the expert's control and the one that most affects how a challenge goes. A published fee schedule that has applied to every engagement, with the same rates charged to retaining and deposing parties alike, is close to unassailable. A rate that appears only when the other side is paying is not.
Minimums are ordinary and generally accepted where they are stated in advance: testimony days are commonly subject to a half-day or full-day minimum, because an expert who has reserved a day cannot sell the remainder of it. What draws scrutiny is a minimum that appears for the first time in the invoice.
Practical steps that avoid the dispute entirely
Publish the fee schedule at engagement, apply it uniformly, state minimums and what is billable in advance, invoice with enough detail to be checked, and raise any disagreement before the deposition rather than after it.
None of this is complicated, and it removes a category of dispute that consumes attention disproportionate to the money involved. A fee fight also has a cost beyond the fee: it puts the expert's commercial arrangements in front of the court in a matter where the substance is supposed to be the opinion.
Where a dispute does arise, it is a question for counsel to resolve against the governing provision and the operative order. The expert's contribution is to have been consistent and transparent enough that there is nothing interesting to find.
Frequently Asked Questions
Generally the party taking the deposition bears the expert's reasonable fee for testimony time, subject to the rules of the forum — addressed in California by Code of Civil Procedure section 2034.430 and by their own provisions in Washington and Oregon. How it operates in your matter is for counsel to confirm.
It is treated differently under different provisions and by different courts, and it is the most common source of dispute. The practical answer is to establish before the deposition is noticed what the expert will charge for and what the deposing party accepts.
Yes, and generally accepted where stated in advance, because an expert who has reserved a testimony day cannot sell the remainder of it. What draws scrutiny is a minimum appearing for the first time on the invoice.
Inconsistency. A rate charged only when the opposing party is paying invites a challenge; a published schedule applied uniformly to every engagement is close to unassailable.
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