A few weeks ago I submitted an estimate of costs for removal of a tree. I have now been subpoenad to make a deposition regarding this estimate. I was not under contract to the client and have not billed the client for submitting this bid. The lawyers demanding my deposition sent a $10-00 "witness fee" with the subpoena. Obviously $10.00 barely covers getting out of bed!!!
What are my responsibilities as a "witness" and what are my rights as an "expert witness" in respect of being paid my normal fees???

Thanks, James.

Reply to post by James Causton, on November 29, 2001 at 21:02:08:

I've been in similar situations, Jim. First, remember that you are being subpoenaed as a fact or percipient witness, not as an expert. In fairness, you should make that clear to the lawyer who subpoenaed you before the deposition.

As percipient witness, you can testify to what you actually experienced with your 5 senses. You cannot make any judgements about it, nor form or offer opinions on what you experienced. If you are asked if there was a cavity, you answer "yes". If you are asked if that made the tree hazardous, you can't answer as a percipient witness. Let them know that if they expect you to serve as an expert, you charge for your time as a professional. Most judges would back you up on that. But don't wait until you get there to tell them. Give them a chance to back off or ante up. You might want to send them a letter about this.

And be sure you get their check before you sit down.

Russ Carlson
Registered Consulting Arborist

Reply to post by James Causton, on November 29, 2001 at 21:02:08:

James,

As usual, russ is right. HOWEVER, I'm not so sure that your appearance to testify as to the amount of your estimate for tree removal qualifies as an expert testimony. It may be that the lawyers only want to establish this cost, not an opinion based on an expertise. It is a gray area, and the judge will provide the ultimate answer. BUT, if subpoened, you must go. what you say may be different.

Just my thoughts-----

Lew

Reply to post by lewbloch, on November 29, 2001 at 21:02:08:

I agree. If the question is strictly about your estimate, that is a matter of fact. If they start asking questions about what you saw or why the estimate is what it is, then that is getting into the grey area of expert knowledge. If you have an attorney with you, he might object to your answering as an expert if you weren't qualified by the court as such.

Reply to post by Russ Carlson, on December 03, 2001 at 17:58:34:

OK. The deposition was today at 11am. Before the deposition was started I clearly stated that I was not appearing as an expert witness but simply to answer any questions regarding the estimate. 11-16am, out of there!!! Sure as heck the shortest, sweetest deposition I ever made. BTW, does it qualify for a world record??

Thankyou all for your words of advice, James.

Reply to post by James Causton, on December 12, 2001 at 00:37:44:

No world record. I read one depo that lasted through four questions, about 8 minutes.

Glad it worked OK for you.