What hourly rate should I charge?
May I charge a flat fee or work on contingency?
How much does a forensic expert make?
Do forensic psychiatrists make more than psychologists? How do they stack up against other med-legal experts?
By Beryl Vaughan
Because so many experts ask me this question, I’m taking this to the mat.
How it begins: An attorney or paralegal calls and their first question is about your hourly rate. What they really want to know is how much it will cost if they retain you. Your hourly rate is less relevant to both of you than understanding the scope of your work, and what it might cost to take you to testimony. More below about navigating that first call to best effect. Remember, whatever you learn, forensic expert witnesses aren’t getting practice-building work because they undercut the competition.
Let’s get the question of contingency fees out of the way: an expert witness can never work on contingency. Contingency ties your fees to the successful outcome of the case. Your opinions are therefore presumed to be rendered in favor of the argument most likely to produce a win. If an attorney asks you to work on contingency, explain why the answer is no. It’s an opportunity to reinforce integrity and a sound understanding of the legal and ethical obligations of an expert witness.
To better understand fee structures in a profession, let’s take a look at what data is available. I’ll talk about Bureau of Labor Statistics reporting, an American Psychological Association survey, two surveys by private expert witness directories and, lastly, my own observations. I’ll also discuss factors that drive charges, a few caveats, and advice about how to get paid what you’ve earned (what you charge is useless if you can’t collect on it):
Let’s tackle information that’s available.
What’s a Usual Fee?
The usual suspects in answering this question:
Word of mouth, or inferences from anecdotes
Inadequate, but not dismissible research
Attorney feedback based on their experience with other experts
The “Research.” Lies, Damned Lies, and Statistics
US Bureau of Labor Statistics: Data Dismissible
What the research says about Forensic Psychiatrists:
2017 BLS Forensic Psychiatrists. Forensic psychiatry is not a category researched by the BLS. For general Psychiatry they report an hourly wage of $103.89. This is comparable to clinical therapy, which has little relationship in payscale to forensic psychiatry.
2016 BLS Forensic Psychiatrists. No numbers are provided for forensic psychiatrists. However, Psychiatrists (presumably clinical) are reported to earn a mean hourly wage of $93.63 and an annual wage of $125,570.
2008: This quote from an article could not be confirmed with BLS, “The U.S. Bureau of Labor Statistics reports that the average salary of a Forensic Psychologist was $64,140 as of May 2008.” Stale, vague. I include it because if you do a search, it may come up and I want you to be prepared.
My Response: Insurance companies pay a higher rate than $93.63/hour to paneled psychotherapists! Right off the bat we have a data disconnect. My experience is forensic psychiatrists rarely charge less than $350/hour and a median is more like $450 for a newbie Board-Certified Forensic Psychiatrist. My experience is that experts in practice 10 years or longer charge between $550-800 depending on testimony experience and skill at holding their own in trial and deposition. Good attorney relationships contribute to less push-back on fees and retainers, and better collections results.
Note, forensic psychologists are paid less than forensic psychiatrists in the forensic expert marketplace, as a general rule. The except is specific expertise that outweighs a psychiatrist for the case.
What the research says about Forensic Psychologists:
2016 BLS Forensic Psychologists: No data is given for forensic psychologists. 2016 median pay for clinical psychologists: $75,230 per year, $36.17 per hour. Again, insurance pays more than that! I wish the BLS would tell us how they arrived there, but no such luck.
Response: Again, because insurance pays more than $36/hour, and private pay patients even more than that, I can only assume $36.17 is derived from (1) clocking training hours to get a license, or (2) jobs with excellent benefits and poor pay, such as correctional psychologists. I can think of no other explanation. Can you? I have never met a psychologist of any kind that earns as low as $36.17/hour. Frankly, I’d ignore the BLS information altogether and be wary of “research” that, in fact, is relying on the BLS data but doesn’t say so at the outset.
2009: American Psychological Association. “Report of the APA Salary Survey.” The methodology is elaborately described, which is a first. Unfortunately, forensic psychologists are addressed only once, under a subcategory “Direct Human Services – Other Psychological Subfields (Licensed only)”
Response: There were 711 respondents in this category of which 5% were forensic psychologists. By my math, this is 35 respondents self-identified as forensic psychologists. Thus, I call this statistically insignificant.
Various Years; 2000-2017: Discussion of hourly rates appear in blogs, blogs, blogs. Mostly hearsay–very few experts actually reveal what they are charging, even if it is the topic of the article. No supporting data provided. Many quote the same US Bureau of Labor Statistics numbers above, with the same flaws.
2017 Expert Witness Fee Surveys by Expert Directories.
Expert Witness Directory Surveys draw on experts listed in that directory, meaning a sample biased by their decision to pay for a listing in a commercial expert directory. The impact of that choice remains to be seen, but a bias is a bias and I feel obligated to report it.
SEAK is a private expert witness directory for attorneys that conducts a survey about what experts are charging. SEAK also provides training, courses, and practice materials for forensic expert witnesses. They are not a research firm and do not disclose a methodology report. Of 1030 respondents to their fee survey, 32 psychiatrists and 29 psychologists responded. That is statistically insignificant.
Another expert directory provides a report about fees. Results are based on surveys in which sampling size of forensic psychiatrists and forensic psychologists are not provided. Results are reported, but not the questions. How did they determine the population to survey? Can results be extrapolated to forensic psychiatrists and psychologists? The answer is no.
My Observations and Experience
I base my impressions on reviewing expert disclosures, depositions, conversations with attorneys about their experience and rates disclosed to me first-hand by experts. Altogether, the sample is tiny. Because market-forces impact pricing of any kind, I give greater credence to attorney statements, court-filed documents, and fees sourced straight from the expert over the BLS which doesn’t address med-legal work at all.
Board-Certified Forensic Psychiatrists: $400-$1,000/hr. Testimony: $500/hr. to $6,000/day. A few doctors charge more if they have unique and exceptional qualifications. Most fall in the bottom 2/3 (under $700/hr) because the numbers support that more Board Certifications in Forensic Psychiatry have been achieved in the last 10 years than the prior 20 (per ABPN). Less experience means a lower rate. In addition to experience, geography is another factor in determining fees, but less than I would have imagined when I started working in this field. I find more geographically- remote doctors charge about 25% less than those in metropolitan areas. Otherwise, wherever they are in the country, a $500/hr expert has a very similar CV to another $500/hr. expert. New York City is its own animal.
The location of the attorney is more relevant than that of the expert; at least, the attorney thinks so. This manifests in bargain hunting by attorneys. That’s their problem, not yours.
Setting your own fee: The presumption made by an expert about their own value, based on no outside information, is dicey at best. I hear “I don’t think I can justify a higher rate so I won’t.” Absent facts or information of any kind, that’s magical thinking. If charging more produces less work, then you have your answer. If charging more has no impact one way or the other, or produces more work, you have your answer.
Psychologists (Ph.D. and Psy.D.), including those Board Certified in Forensic Psychology (ABPP): Psychologists charge less than MD’s, except if they have special background and skills that set them apart. The reasons are obvious. When advising a forensic psychologist I argue that forensic work should be billed at a higher rate than psychotherapy. The training is more specialized for forensic work, the marketplace less populous, the stakes high and fixed for the litigant. A forensic psychologist with extensive experience testifying, and practice specialty with a lot of chops can out-charge untested doctors if the issues are not medical in nature. The least experienced licensed and forensically-trained psychologist might charge as little as $250/hr. but $300/hr. is more likely. After 10 years of substantial experience, that psychologist may be charging $500/hr. The gap is less flexible for psychologists than psychiatrists. A neuropsychologist or psychologist board-certified in the treatment of children and adolescents can sometimes charge more than their counterpart without such training.
If there is a reason you think justifies your charge at the higher end, state why on your website. It’s another opportunity to educate the attorney and make clear what is impacting the value of your services. A psychologist Board-Certified in Forensic Psychology by the ABPP recently gave me an education about the training he received and the rarity of such a Board-Certification. My response? “Put it on your website” (not how much is charged, but what makes his credentials more valuable.)
Most experts decide what to charge by using the most sophisticated scientific methodology: “asking around.”
The “Asking Around” Method
When you ask your colleagues what they are charging, can carry a hidden presumption the answers come from experts that conduct their work at the same baseline as you–i.e. you and they are Board Certified (or not,) you and they have the same years of experience (or not.) You and they are equally at ease speaking with attorneys and testifying (or not.)
The American Academy of Psychiatry and the Law publishes Guidelines to best-practices in the forensic assessment which have been accepted in court. Ethical guidelines are also published by the AAPL. Read these informative guides and see if you meet the threshold for best practices. If not, then your fees should be less than the average rate in your area. Free to anyone (www.aapl.org); both psychiatrists and psychologists will find these resources invaluable. The AAPL Guidelines address:
Evaluation of Psychiatric Disability
Competence to Stand Trial
Video Recording of Forensic Psychiatric Evaluations
More Important Than Rates
When asked your hourly rate, what you say and how you say it has more impact on what you earn than your actual fee, assuming your rate is reasonable. Feel free to answer the attorney’s question, but move on. Better yet, supply your rate only after you ask more about the case. Your job is to show you know your business, not to price yourself into the job. One way to do that is by the questions you pose, which are arguably more important than the questions you answer. What you ask about the case shows your med-legal knowledge. If you don’t have a good grasp or experience of cases and how forensic opinion factors, it will have a negative effect on your rate. Whenever you make a sound relationship with an attorney in long practice, take advantage of that relationship to learn as much as you can about how a lawsuit plays out and when an expert is brought in.
Finally, you, like everyone who bills their services hourly, from law to construction, need to establish the “true scope” of your job to discuss your overall charges. Don’t make estimates, promises or guarantees. Make educated guesses if you must and make it clear it is an educated guess. It is perfectly understandable that an attorney on a budget wants to be kept informed as your fees accrue, perhaps receive invoices weekly or ask you to stop and check in when your charges reach a threshold. On your part, however, this is a courtesy, not an accommodation to restrict your charges.
What is the “True” Scope of Work? Everyone comes into a conversation with preconceived notions. In your work, an attorney might mistake the quantity of records you are asked to review, or if they are a slow-read or a fast-read. One examinee has a lot to say and some psychological reasons to take extra time to say it. You discover along the way that another expert has a report and testing results you want to review before rendering an opinion and, most likely of all, the attorney introduces new work constantly. These are common complications to establishing a “cost” of your work. And it’s deadly because you are at risk for the most unpleasant experiences of all: the dreaded “you owe me more than you think you should” conversation which usually ends with a very poor attorney relationship and getting paid less than you earned. At the start, the attorney can’t really know how you work and what it will take, if they’ve never worked with you. They may not even know what experts in your field do. Likely, they don’t know what’s time-consuming. Discussing the case and clarifying a realistic scope gives the attorney a chance to see how you think before arriving at conclusions and, to some extent, your honesty, conviction, logic and confidence–all relevant to how your testimony will play out.
A word about Repeat Business. Low Hanging Fruit. Most of this site is about “catching the eye” of a new client. The lowest hanging fruit, however, is repeat-business. You’re already a known quantity, you don’t have to go through the song-and-dance of a first call but can cut to the chase. Less learning curve for both you and the attorney. Billing and collecting isn’t a surprise. Keep your relationship with this client alive. Depending on the relationship, outreach might be a simple call, an email, a card, a gift. The goal is reestablishing a connection so it feels like pleasantly running into an old friend.
How You Present Yourself Trumps Hourly Rates: Mapping Behavior
Defensive Conversation. Experts uncomfortable with the first call, or defensive about their hourly rate or credentials, trigger a red flag for the attorney. They’ll wonder if you’re defensive because you’re charging too much, or perhaps you’re not charging enough because your credentials are lacking. Don’t be embarrassed if being defensive is a problem for you, it’s very common, especially among forensic psychiatrists and psychologists early in forensic practice. A script or checkbox of points to raise in a first call will teach you to internalize your “posture,” and the skills that get work pinned down.
Scripts. I like to do a few “Mock” attorney-first-calls to the expert. This clarifies what’s working, and what’s not. I do a pretty good “attorney.” I might develop a script to get you past topics you find uncomfortable. We collaborate to refine the script and work on strengths and weaknesses. Remember, the attorney is calling a few experts like you before making a decision; callbacks are rare. Once you’re talking with the attorney, you have one opportunity to move a call towards forensic work. Piece of cake.
Protocols. I encourage using a guide/checklist for that first call to hit all the key points and provide you with good notes later. What’s on the checklist is specific to your practice and work style. The checklist for civil cases is different than, criminal, etc. Your notes, whether a checklist or written on the fly, documents your conversation with the attorney and that comes in very handy if scope changes. If you have an eidetic memory, you only have to read the guide once. For the rest of us, a form is handy. The checklist also reminds you to find out how the attorney found you (marketing data,) and deadlines that drive your work. In this manner, you can put the “scope” question into perspective for the attorney.
Hourly, not Flat Fee or Capped Fees. Hourly, Not Salary. Hourly, Not Contingency. As an Expert Witness, you have an ethical obligation to maintain a barrier between what you’re paid and your objective opinions. You’re strictly prohibited from accepting a fee on contingency, as I explained; when your profit is tied to the case outcome (i.e. a high award), objectivity is negated. A flat fee, or capped fee, is also a bad idea, but not prohibited. A smart attorney will cast doubt on your findings during cross-examination. Did you rush to a sloppy job to improve your profit under a flat fee? In other words, did you try and do less work than the capped fee so you could pocket the difference? That’s going to go south. Flat fee work is at absolutel best a failure of best-practices.
Pay Mandated by Regulation vs. Private Marketplace. Salaried psychiatrists and psychologists treating patients in an institutional setting are paid for a completely different type of work than private forensic practice. E.g. salaries for making probation recommendations or VA disability assessments is uninformative to your expert practice.
What to charge if you’re called to testify about your patient who is also a litigant? If you’re asked to transition from treater of your patient to expert witness in the patient’s litigation, what you charge introduces an ethical dilemma. If you’re an expert witness, you have to be unbiased and that interferes with trust in your doctor-patient relationship. Charging your expert witness fee and an expert retention contract is a different animal than treater. Whose side are you on? Your patient’s? The Court’s (relying on your objective opinions even if they are harmful to your client?) In Federal Court, this ABA article explains “…Hybrid Fact-and-Expert Witnesses…Traditionally, treating physicians have been treated as fact witnesses and are not required to provide any expert report.” “They are a species of a percipient witness . . . Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819 (9th Cir. 2011).” Price and Beckman, Hybrid Witnesses’ (sic) and Federal Rule of Civil Procedure 26, ABA Litigation Section (2012.)
“Crazy Busy” Trap. What’s not relevant in any of these scenarios is that you’re crazy busy at the rate you’re charging, but not charging enough to be less busy and more prosperous. Being busy can be a trap that sidetracks you from practice goals. You’ll see what I mean in “Too Busy to Make More Money.”
With all this in mind, an educated guess can be made about the right fee for you. Everything’s a market economy. Supply and demand can drive a change in your fees up or down, and it’s not fixed.
I will help you determine a reasonable rate based on a thorough understanding of you and your practice, but ultimately we test the waters. Client feedback will tell us if it is appropriate to adjust higher or lower to reach the fee that, like Goldilocks’ breakfast, is just right.