"Who pays the expert?" sounds like a simple question and has at least four answers, depending on whether you mean your own expert, the other side's expert at deposition, a court-appointed expert, or what you can claw back as costs if you win. The answers are not intuitive, and the gap between "expert fees" and "recoverable expert fees" catches people out.
Every rule cited below links to the primary text. No figure here is estimated.
Who pays the expert witness you retain?
You do — more precisely, the retaining party, usually the law firm on behalf of its client. Not the court, and not the losing side. Most experts require a retainer before any work starts, and invoice the balance on net-15 or net-30 terms. Payment is not contingent on the outcome and cannot be.
The expert is your vendor. They work under an engagement letter with your firm, they bill you, and they are owed the money whether the case settles on the courthouse steps, is dismissed on summary judgment, or goes to verdict and loses. Two contract terms decide how much exposure that creates:
- Evergreen retainers. The firm must top the retainer back up as hours are billed against it, which shifts collection risk entirely onto the firm.
- Portal-to-portal travel. The expert bills from departure to return, not just time on the stand. On an out-of-state deposition this can double the cost of a testimony day.
Cancellation terms for trial dates vary widely and no published survey we are aware of measures them. Get them in writing before signing, and treat any source quoting a "standard" cancellation percentage with suspicion.
Who pays for the opposing party's expert at deposition?
The side taking the deposition pays. Under Federal Rule of Civil Procedure 26(b)(4)(E), unless manifest injustice would result, the court must require the party seeking discovery to pay the expert a reasonable fee for time spent responding to it. So if you depose your opponent's expert, you pay that expert's hourly rate for the deposition hours.
This surprises people, and it is a real budget item. Rule 26(b)(4)(E) requires the deposing party to "pay the expert a reasonable fee for time spent in responding to discovery," and where the discovery is of a non-testifying consulting expert under 26(b)(4)(D), also to pay the other party a fair portion of the fees it incurred obtaining those opinions.
Two practical consequences. Deposing a $700-per-hour plastic surgeon for a full day is a four-figure cheque written to the other side's witness, on top of your own expert's prep time. And "reasonable fee" is litigable — courts do reduce expert deposition charges they consider excessive, so an unusually high rate is not automatically recoverable by the expert's own side.
Who pays deposition costs, and what drives them?
The party taking the deposition pays the expert's deposition costs. Under FRCP 26(b)(4)(E), that is a reasonable fee for time spent responding to discovery, not a bill to the court and not a bill to the expert's own client.
What drives the number is already described above: the expert's hourly rate, the deposition hours, and portal-to-portal travel. On an out-of-state deposition, travel can double the cost of a testimony day. Deposing a $700-per-hour plastic surgeon for a full day is a four-figure payment to the other side's witness, on top of your own expert's prep time. A court can reduce a charge it does not consider a reasonable fee.
Can you recover expert witness fees if you win?
Rarely in full, and in federal court usually not in any meaningful amount. Under FRCP 54(d) and the federal cost statute at 28 U.S.C. § 1821, the taxable witness fee is an attendance fee of $40 per day plus travel and subsistence — not the expert's actual hourly rate. Assume you bear the real cost regardless of outcome.
Section 1821(b) sets the attendance fee at "$40 per day for each day's attendance." Subsections (c) and (d) add actual travel at economical commercial rates or the GSA mileage rate, plus a subsistence allowance capped at the GSA per diem for the area. That is the whole of the ordinary federal taxable cost for a witness who is not court-appointed. Against a $700-per-hour expert who billed sixty hours, $40 a day is not a rounding error in your favour.
State practice varies and some jurisdictions are considerably more generous, and fee-shifting statutes, offers of judgment and contractual prevailing-party clauses can change the picture entirely. Check your forum. The safe planning assumption is that the retaining party absorbs the expert bill.
Can an expert witness be paid a contingency fee?
No. Contingency arrangements for expert witnesses are prohibited under ABA Model Rule 3.4(b) and its state analogues, because paying for an opinion contingent on the result destroys the expert's independence. It is also a straightforward route to exclusion of the testimony.
Experts must be paid hourly, daily or on a flat fee, regardless of verdict or settlement. If an expert proposes a success-based arrangement, that is a reason to retain someone else.
What does a retainer cost, and when is the balance due?
Among experts who require a retainer, SEAK's 2024 survey of 1,633 experts reports a median of $3,000, an average of $4,084 and a range from $275 to $50,000. Separately, 74% of experts require a minimum engagement fee and 40% set that minimum between $2,500 and $4,999 (ExpertPages 2026). Balances typically fall due net-15 or net-30.
| Item | Median | Average | Source |
|---|---|---|---|
| Retainer (of those requiring one) | $3,000 | $4,084 | SEAK 2024, 1,633 experts |
| Typical total billings per case | $7,000 | $14,376 | SEAK 2024 |
| Most money billed on a single case | $25,000 | $65,191 | SEAK 2024 |
| Hourly, case review | $450 | $466 | SEAK 2024 |
| Hourly, trial testimony | $500 | $633 | SEAK 2024 |
Rate-by-rate figures for your specialty, and a calculator that totals an engagement, are on the 2026 expert witness fee guide.
Sources
- FRCP 26(b)(4)(E) — the deposing party pays the expert a reasonable fee for responding to discovery
- FRCP 54(d) and 28 U.S.C. § 1821 — taxable costs; $40 per day attendance fee plus travel and subsistence
- ABA Model Rule 3.4(b) — no contingent expert compensation
- SEAK 2024 Survey of Expert Witness Fees — retainer, billing and hourly figures, 1,633 experts
- 2026 ExpertPages® survey — minimum-fee and per-case figures
Related Reading
- Expert Witness Fees 2026 — rates by specialty, with a fee calculator
- Rule 26 expert disclosure requirements — what the written report must contain, including compensation
- Medical expert witness fees 2026
- Browse every expert witness on WitnessDirect