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Copyright (c) 1991 Southern California Law Review
University of Southern California

NOTE: CONTINGENT EXPERT WITNESS FEES: ACCESS AND LEGITIMACY.

July, 1991

Southern California Law Review

64 S. Cal. L. Rev. 1363

Author

JEFFREY J. PARKER *

Excerpt

I. INTRODUCTION

Testimony by expert witnesses is a practical necessity in many legal disputes. 1 The assistance these experts provide, however, is not inexpensive. 2 Expert fees can greatly increase the cost of litigation, often making it impossible for claimants to secure necessary, qualified expert witnesses due to lack of both client and attorney resources. Thus, these claimants may be denied a realistic opportunity to attain, or even properly pursue, their rightful compensation. Although litigants who are unable to afford the necessary experts are not denied physical access to the court, 3 prohibitively high fees could effectively bar recovery just as if a physical barrier had been erected.

With regard to attorney's fees -- another area where prohibitive fees often constitute an economic barrier to court access -- the American legal system has sought to alleviate the problem by allowing claimants to employ counsel on a contingent basis. 4 However, the common law of most states, 5 with the support of the American Bar Association, 6 forbids any witness from testifying on a contingency fee basis, 7 thereby blocking a feasible avenue of improved access.

Part II of this Note examines the rationale for the current witness compensation regime. The main reason for the ban on contingent expert witness fees is the fear that the witness will be consciously or unconsciously biased in favor of the litigant who pays the expert's bill. In addition, courts are concerned with the legal system's pursuit of truth and the ill effects of perceived ...
 
 
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