The determination of expert witness fees/attorney fees, and the same as taxable costs.

The prevailing party in a civil suit is generally entitled to have the opposing party pay its costs. MCR 2.625(A)(1). Whether and to what extent a particular expense may be taxed as a cost is purely statutory. MCL 600.2401. See Leahy v Orion Twp, 269 Mich App 527, 530 (2006).

Expert witnesses may be paid a fee in excess of the fee paid to an ordinary witness with the trial court’s permission and that the fee paid to the expert witness may be taxed as part of the taxable costs. MCL 600.2164(1). An expert is not, however, entitled to compensation—as a witness—for every service that the expert may have provided. Mich Citizens for Water Conservation v Nestlé Waters North America, Inc, 269 Mich App 25 (2005).  An expert is entitled to compensation as a witness only for the time that the expert actually spent in court and for the time that the expert spent to prepare for his or her testimony as an expert. Id.; see also State Hwy Comm’r v Rowe, 372 Mich 341 (1964). 

The question whether a person participated in the litigation as an expert witness is a question of law that must be determined from the totality of the circumstances.  A witness can be an expert witness and be entitled to excess compensation even if the expert witness never actually testifies. See Jones v Antrim Circuit Judge, 223 Mich 141 (1923) holding that fees for expert witnesses who attended trial, but who were never called to testify, could be taxed as a cost because the witnesses were “in good faith made to attend” and would have testified as to matters of opinion had they been called.  See also Herrera v Levine, 176 Mich App 350 (1989). Whether the witness was ultimately called to testify or admitted as an expert is not dispositive; an expert may be entitled to compensation for preparation related to his or her testimony as an expert in addition to compensation for his or her time spent actually attending court. State Hwy Comm’r, supra. However, the prevailing party may not tax as a cost those fees paid to the expert for services other than time spent at trial or preparing for trial. Michigan Citizens for Water Conservation, supra.  

An expert witness is one who has “scientific, technical, or other specialized knowledge” that will “assist the trier of fact to understand the evidence or to determine a fact in issue” and who testifies “thereto in the form of an opinion or otherwise.” MRE 702. The key to qualifying for compensation as an expert is that the witness offers or will offer opinion testimony in his or her area of expertise: “The provisions of MCL 600.2164 allowing for the taxation of costs shall not be applicable to witnesses testifying to the established facts, or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters of opinion.” MCL 600.2164(3).  Nothing in MRE 702 or MCL 600.2164, however, precludes an expert witness from offering both fact testimony and expert opinion testimony. See United States v Lopez-Medina, 461 F3d 724, 743 (CA 6, 2006) stating that police officers may testify as both experts and fact witnesses.

Once a witness testifies as an expert by offering opinion testimony, the witness is entitled to seek compensation “in excess of the ordinary witness fees provided by law” without regard to whether the witness also offered testimony on facts. MCL 600.2164(1). Nevertheless, when exercising its discretion to award a fee in excess of the ordinary witness fee, the trial court must consider the nature and complexity of the expert’s opinion testimony in relation to his or her lay testimony when determining whether the witness’ expert fee was reasonable.  When considering the reasonableness of the expert witness’ fee, the trial court should consider the total fee in light of the time actually spent in court and the complexity of the expert’s testimony. The trial court should also have assessed the reasonableness in the light of the typical fee charged by similar experts for a similar period of trial preparation and time spent in court. Finally, the trial court must address whether and to what extent the expert’s pretrial fees were actually and reasonably incurred for preparing to testify as an expert at trial. Michigan Citizens for Water Conservation, supra.

If after examining whether and to what extent the expert’s fee is taxable as a cost under MCL 600.2164, the trial court determines that expert is entitled to his actual costs under MCR 2.403(O)(3), the trial court must also examine the reasonableness of the prevailing party’s attorney fee consistent with Smith v Khouri, 481 Mich 519 (2008). The trial court should provide sufficient information for appellate review of the award; in particular, it should identify the “fee customarily charged in the locality for similar services” and the source for that determination. Smith, supra.  See also Augustine v Allstate Ins Co, 292 Mich App 408 (2011) stating that it was insufficient for the trial court to simply find that the fee was reasonable; it must first determine the fee customarily charged in the locality for similar legal services and then adjust from there. It should also state the number of hours that it believes were reasonably spent on the litigation and should briefly address its view of the remaining factors identified in Smith, supra and how the overall fee should be adjusted considering those factors.