The Florida Bar

Originally issued January 8, 1968
Revised April 23, 1993

A member of The Florida Bar who subpoenaed a physician to offer expert testimony in a personal injury case and who did not advise the physician until subsequent to his testimony that he considered the expert witness fee to be an obligation of his client should advance such reasonable witness fee as may be assessed by the court.

Statute: F.S. § 92.231

In the course of the presentation of a plaintiff's personal injury case, a member of The Florida Bar subpoenaed a physician to offer expert testimony, such subpoena being accompanied by the standard mileage and per diem fee as prescribed in the Florida Statutes. Before trial, counsel had advised the plaintiff that the expenses of the trial, including expert witness fees, would be entirely his obligation. Although no agreement was made by the attorney to compensate the physician for his expert witness fee, apparently the attorney did not advise the physician until subsequent to his testimony that he considered the expense an obligation of the client. Following the rendition of a verdict for the defendant, the physician has requested that his compensation as an expert witness be paid by the attorney. We are requested to advise the lawyer concerning his professional responsibility with reference to this request.

We emphasize at the outset that to the extent this inquiry involves the law of express or implied contracts it is one beyond our jurisdiction. A comprehensive annotation setting forth cases expressing divided views on the subject is found in 15 ALR 3rd 531.

We deal solely with the ethical aspect of the matter. We further assume at the outset that there is no custom in the community or county involved wherein it was or should have been understood by the physician that he was to look solely to the client, and further that there is no inter-professional code between the county bar association and the county medical society, which in effect would be a written embodiment of the custom governing attorneys and physicians in such circumstances.

With these assumptions, we note the provisions of Section 92.231, Florida Statutes, provide in part as follows:

(2) Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in the amount of $10 per hour or such amount as the trial judge may deem reasonable, and the same shall be taxed as costs.

In view of the fact that the physician who was entitled to rely upon this statute appeared and offered expert testimony, and in the absence of a disclaimer by the attorney prior to the testimony, we think that it would be unprofessional for the lawyer to decline under these particular circumstances to advance such reasonable fee as may be assessed by the court. It is to be noted that while ordinarily costs are taxed only to a successful party, the statute in question is not limited to experts testifying for the successful party.

[Revised: 08-24-2011]