In a recent blog I discussed the wide latitude that is given to a cross-examiner on the issue of a witness’ bias. More specifically, the latitude is especially great on the bias of an expert witness and the witness’ compensation. Experts are paid for their time. By virtue of the Rules of Professional Conduct which are applicable to lawyers, experts cannot be compensated on a contingency basis. This does not mean that experts aren’t paid. Quite the contrary. Further, their compensation is often the subject of long and aggressive cross-examination.
Certainly, the rate of compensation is admissible. While some judges will not permit the overall income of the expert to be divulged, the percentage that they earn from testimony is usually admissible. Judges deem it relevant to know whether the expert is deriving his/her income primarily from expert witness work or from practicing their specialty. For example, does the testifying physician perform surgery or is he/she now simply a testifier? Does the engineer practice or is he/she a testifying person with no particular connection to the subject case. As one venerable attorney cross-examined an engineer one day in court, ‘So you’re an expert on everything from teapots to toasters?’ Those issues are always relevant. Most often, they go to the weight to be given the evidence rather than to the admissibility.
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