Episode 176 - You Don't Have to Prepay Experts Before Their Deposition

How many times have you noticed an expert witness for deposition, only to be told you've got to pay their fee in advance, failing which, they say, they aren't coming. As Jim Garrity explains, it doesn't have to be that way. Listen in and learn why prepayment isn't required and how to properly avoid advance payment. After all, those prepayment demands are often excessive, don't explain how the fee was determined, and of course don't guarantee the expert will even qualify as such, much less offer admissible testimony. And we've got a wealth of research for you in the show notes.

SHOW NOTES

Evans v. Home Depot USA, Inc., Case no. 2:25-CV-451-SPC-KRH, 2026 WL 1837154 (M. D. Florida June 25, 2026) (plaintiff’s treating doctor, a non-retained expert, was set for one hour deposition, and demanded prepayment of $3,000 for the deposition; held, prepayment is generally not required, “so lack of prepaid fees would not justify refusing to attend the deposition after proper service of a valid subpoena;” further outlining the process to address a treating physician’s potential nonappearance at a deposition, asking whether the deposition was subject to the courts subpoena power, and if so, whether the defendant had issued and served the subpoena, noting that the court then need not intervene until (a) the physician seeks to quash the subpoena or fails to appear, and (b) the defendant moves to hold him in contempt for failing to appear to deposition)

Johnson v. Spirit Airlines, Inc., No. CV 07-1874FBJO, 2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (“The pertinent rule thus teaches that once Dr. Seldes has actually “spent” time responding to Spirit's questions at the deposition, he may then bill Spirit for a “reasonable” fee for that amount of “time.” Dr. Seldes therefore may not insist on advance payment, and may not set a flat fee before he knows what he will be called upon to do; he may instead charge only a reasonable hourly fee. I will not predict in advance what reasonable hourly fee Dr. Seldes may choose to request, but should a dispute arise, I will of course defer to the persuasive authority of cases such as the Garnier decision cited above and the precedent on which it in turn relied. See id. at *3-*4 (describing a range of reasonable hourly rates below $500))

Conte v. Newsday, Inc., No. CV 06-4859 JFB ETB, 2011 WL 3511071, at *3 (E.D.N.Y. Aug. 10, 2011) (“The rule and the case law makes it clear that the parties seeking court intervention to determine a reasona