S t a t e o f W i s c o n s i n
Office of The State Public Defender
Wisconsin Forward Award Mastery Recipient
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Retaining and Managing Experts
Working with and paying experts is an essential part of criminal defense work. Finding the right expert, negotiating a reasonable rate of compensation, and managing the expert so s/he does not exceed approved amounts can be difficult and time consuming. The following are offered as practice tips to make this job easier. How do I find an expert? There are many sources of information about experts. Many attorneys are willing to provide the names of experts they have used on other cases. The Wisconsin State Public Defender has an expert database available to the private bar on its website: www.wisspd.org. An attorney can also use the Wisconsin State Public Defender listserve to ask the participants for suggestions. To sign up for the listserve send an email to Email ACD. Private Bar attorneys may also contact their local SPD office to consult with staff about experts they have used. Who pays for the expert? In some cases the court is authorized or required to appoint an expert. Such cases usually involve psychological/psychiatric evaluations. The common examples are:
Not guilty by reason of mental disease/defect - the court may appoint When the court has appointed the expert, the county pays for that expert. The Wisconsin State Public Defender will not pay for any expert appointed by the court. If the court has appointed an expert, you may still request approval for another expert from ACD. Your request should explain why a second expert is necessary. How much should I pay for an expert? The Wisconsin State Public Defender has limited resources to pay for expert witnesses. That is why assigned counsel attorneys must obtain advanced approval from the Assigned Counsel Division to retain an expert. The cost of an expert can vary greatly depending on the type of expert and your locale. However, we rarely approve experts at their premium private pay rate. For example, physicians, including psychiatrists, are usually approved at between $125 and $175 per hour. DNA testing usually costs between $1200 and $1800 dollars. The Assigned Counsel staff can assist you by providing information about the usual cost of various types of expert services. Email your questions to Email ACD. You should negotiate the best price for your expert services. Many experts will work for less than their premium rate. Many experts will take a reduced rate for travel time. In some cases it may make sense to negotiate a flat rate for an itemized list of services to be provided by the expert. Because funds are limited, the Assigned Counsel Division will rarely approve an out of state witness. The cost of travel, travel time, and trial dates rescheduled at the last minute make this unreasonably expensive. In some instances, the Assigned Counsel Division may approve an out of state witness to consult with an in state witness in order to share particular expertise. What should I do when I have retained an expert? Once you have negotiated the costs with your expert and ACD has approved those costs, you should follow up with a letter to your expert. The letter should state clearly the amount approved and that the expert must contact the lawyer before exceeding the approved amount. The Wisconsin State Public Defender is not responsible for paying more than the approved amount. The letter should clearly describe the services that have been negotiated for. Rather than say "psychological evaluation", the letter should list the work that goes into such an evaluation such as: review medical records, interview client, consult collateral sources, review police reports, provide written report to attorney. This will help to avoid misunderstandings and overbilling. You should hold your experts to their original estimates of cost as much as possible. If the expert tells you that s/he will need more time to complete the work, you may request approval for additional funds from ACD. Approval must be obtained before allowing the expert to proceed. What information should I give to the expert about my case? Sometimes you have both good and bad information about your client and his/her case. You should consider carefully what information you provide to the expert. However, if you withhold material information from the expert, their conclusions may be suspect. Further, if you withhold material information, the expert may not be as able to defend his/her opinion on cross examination. How does the expert get paid? When you submit your bill to the SPD, you will submit the expert bill as an expense. You must also submit the expert's itemized statement. You will receive a check for your fees and expenses including the cost of the expert. You are then responsible for paying the expert. Expert bills are ordinarily submitted with the attorney's bill at the end of the case. In some cases an expert bill may be processed before the case is concluded when need is shown. You should contact ACD and request approval to submit an interim bill for your expert costs. Interim bills for experts will be generally approved if the case will not close for at least 60 days and the expert's work is completed. What if the expert demands to be paid in advance? The Wisconsin State Public Defender cannot pay in advance for expert services. State rules only allow payment for services already performed. ACD will provide a letter to you documenting the approved amount and promising to pay, if that is helpful. What if there is a witness in my case who happens to be an expert? Sometimes there will be a witness in a case who happens to be an "expert". Often times this witness is the emergency room doctor, family physician, or counselor. If the testimony sought from such witnesses is for their expert opinions as well as their observations, they are entitled to expert fees. See In Re the Imposition of Sanctions in Alt v. Cline, 215 Wis.2d 203 (1999). In that case the court said:
In addition to demonstrating a compelling need for the expert's testimony, If you have such a witness in your case, you should speak with them and negotiate reasonable fees for their testimony. You must then get approval from ACD for those fees. If the expert is unreasonable, you may have to file a motion with the court asking the court to set reasonable fees for the expert. Other questions about experts: If you have any other questions about experts, please contact the Assigned Counsel Division at |
