How Federal Agencies Subpoena and Compensate Expert Witnesses

How Federal Agencies Subpoena and Compensate Expert Witnesses

Expert witnesses play a critical role in legal cases, providing specialized knowledge and testimony to help judges and juries understand complex issues. But how exactly does the process work when a federal agency needs to bring in an expert witness? This article will walk through the key steps, rules, and procedures federal agencies follow when subpoenaing and compensating expert witnesses for cases.

The Role and Value of Expert Witnesses

Experts serve a unique purpose in legal proceedings – they have specialized skills, knowledge, training, education, or experience that can shed light on technical, scientific, or other complex topics for the court. Your average juror or judge simply doesn’t have expertise on things like forensic evidence, accounting practices, medical procedures, and so on. That’s where the expert comes in, to help “translate” and explain these concepts in terms the court can understand
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Having strong expert testimony can make or break a case. Skilled experts who communicate clearly can really help simplify and clarify complicated issues for the jury and judge. Poor experts who are unclear or disorganized can actually undermine a case. That’s why federal agencies are careful and strategic about who they select as an expert witness. Picking the right expert for the issues and facts in the case is critical.

How Federal Agencies Locate and Select Experts

There are a few key ways federal agencies find qualified expert witnesses to testify:
Looking within their own organization first – many federal agencies like the EPA and FDA already have respected subject matter experts on staff
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Reaching out to other government agencies or labs – if another federal department has an expert who could help, they may share that person as a witness
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Tapping academic networks – research universities are home to many of the world’s top experts, who can serve as witnesses
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Checking professional associations and industry groups – trade groups and membership societies have access to networks of specialists
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Leveraging existing relationships – attorneys may already know experts in the field through past cases and connections
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Searching expert witness directories – online databases like JurisPro make finding specialists easier.
The key is finding an expert who has directly relevant expertise to the specific issues in the case. Federal attorneys vet potential experts carefully through interviews and reviewing credentials, publications, past work, and feedback from professional networks. Character and demeanor matter too – experts need to be able to communicate complex ideas to laypeople clearly and credibly.
Once an expert is selected, they may need to provide a report outlining their methodology, opinions, and credentials as part of discovery before testifying. Thorough vetting and an expert report help establish the witness as a qualified authority.

Subpoenaing Experts to Obtain Testimony

Federal agencies can compel expert witness testimony through subpoenas authorized by a court. Here are the key steps in issuing a subpoena to an expert:
The federal attorney files a motion asking the court to issue a subpoena for the expert’s testimony. This explains why this specific expert’s testimony is needed.
The judge reviews the motion and approves or denies the subpoena. If approved, the court clerk issues the subpoena.
The U.S. Marshals Service formally serves the subpoena to the expert witness. This makes sure the expert has been officially notified and is legally obligated to testify.
If necessary, the agency can obtain a material witness warrant to arrest an unwilling expert and bring them to court. But this is rare – most experts comply voluntarily.
The expert witness is sworn in and delivers testimony at trial or hearings. The subpoena compels them to appear and provide truthful statements.
If the expert fails to appear, they can be charged with contempt of court for defying a court order. So subpoenas give agencies powerful leverage to obtain testimony.
While experts can try to quash or modify a subpoena if the request is overly burdensome or irrelevant, agencies are usually careful to only subpoena necessary testimony that is clearly pertinent to the case. This makes it hard for experts to avoid or evade the subpoena.

Compensating Expert Witnesses for Testimony

Expert witnesses are entitled to be paid reasonable fees for their time and expenses related to providing testimony. But how they are paid depends on who hires them:
For federal agency cases, the Department of Justice has a set fee schedule that dictates how much experts are paid. The agency covers these costs directly.
If retained by other parties like the defense, the expert’s fees and payment arrangements are determined through individual negotiation.
For indigent defendants with public defenders, the courts may cover expert fees using Criminal Justice Act funds. There are fee caps and the presiding judge must pre-approve payments.
No matter who pays them, experts are only compensated for time spent on specific case-related activities like reviewing records, examining evidence, preparing reports, conferring with attorneys, and testifying. Personal time and expenses unrelated to the case are not reimbursed.
Expert witnesses who testify regularly can make a comfortable living, with experienced medical experts earning hundreds of thousands of dollars or more annually. But for academics and professionals who just testify occasionally, it is often seen more as an intellectual challenge or public service than a money-making endeavor.

Ethical Rules Experts Must Follow

Experts who testify in federal cases have ethical obligations they must adhere to:
Presenting truthful, objective testimony based on their honest expertise – not advocating for a particular side.
Disclosing the full extent of their work and compensation arrangements for the case.
Avoiding even the appearance of conflicts of interest that could undermine their credibility.
Not accepting contingent fees based on the outcome of the case. This helps avoid bias.
Not communicating privately with the retaining party’s attorneys if both sides are entitled to be present.
Not obstructing or delaying the case unreasonably. Experts must act professionally.
Additionally, federal employees face special restrictions on outside expert testimony:
They cannot testify against the U.S. government.
They need agency approval to testify in private cases while employed by the government.
Special government employees have additional limits on the types of cases they can testify in.
Violating these ethical obligations can get experts disqualified from testifying, harm their reputations, and even prompt professional discipline or civil sanctions in extreme cases.

Key Laws and Precedents on Expert Witness Testimony

A few important laws, regulations, and court precedents shape how federal expert testimony operates:
Federal Rules of Evidence – Rule 702 governs the standards for qualifying expert witnesses and presenting expert opinions in federal court.
Federal Rules of Civil Procedure – Rule 45 authorizes attorneys to issue subpoenas to compel expert testimony.
5 CFR § 2635.805 – Limits federal employees from serving as experts against the government without authorization.
Criminal Justice Act – Provides for procuring and funding defense expert witnesses if needed.
Daubert v. Merrell Dow (1993) – Established standards for admitting scientific expert testimony in federal courts.
Kumho Tire Co. v. Carmichael (1999) – Extended Daubert standards to all technical and specialized expert testimony.
These landmarks shape the ground rules for expert witnesses in federal cases, formalizing qualification requirements, payment procedures, ethical duties, and standards for scientific validity. Understanding this regulatory landscape is essential for federal attorneys.

Navigating the Expert Witness Process

Securing knowledgeable, credible expert witnesses and introducing compelling testimony is crucial for any complex federal case. But the process also involves many formal rules and steps for properly subpoenaing and compensating experts. Careful case planning and close collaboration between attorneys and experts is key to making it work smoothly. With so much on the line, federal agencies need to be strategic in leveraging experts without any missteps that could jeopardize the case.