The Justice Department’s ever more complex national security and financial crime caseload has been a boon for an often-overlooked cog in the federal legal system: the expert witness.
The department has asked Congress for more than $250 million in fiscal 2011, anticipating a spike in demand for witnesses who can distill eye-glazing arcana into something more or less accessible to the average person (or judge), according to budget documents recently posted on the department’s Web site. The funds would also be used pay the fees of physicians and psychiatrists who examine criminal defendants to determine their fitness to stand trial.
The overall funding level for witness fees and protection has remained flat, at about $168 million, since fiscal 2006, with the department using direct appropriations and carry-over balances to cover rising costs. Those carry-over balances are approaching zero, and the department says it needs an additional $92 million to pay experts on range of topics, from spent nuclear fuel to mortgage lending.
About 70 percent of the expert witnesses used by the department in 2009 were physicians, psychiatrists, appraisers, engineers or economists, according to the department. Their rates vary, and compensation is negotiated between the expert witness and the Justice Department lawyer who selects them.
Government lawyers must interview at least three potential expert witnesses before making a selection; there are no caps on costs or required minimums, a Justice official said. Each Justice Department component and U.S. Attorney’s office has a designated official who approves expert witness contracts.
“Because of that decision, the federal government may be made liable for billions of dollars in damage claims; therefore, a significant amount of expert witness resources will be needed to accurately and fairly access the thousands of claims filed in this case,” the budget document states.
Expert witnesses are also playing a key role in assessing the value of tribal lands, as the Civil Division lawyers defend the Interior Department in dozens of lawsuits alleging it mismanaged Indian funds held in trust. And the department said more expert witnesses will be needed to give testimony in trials over the storage of spent nuclear fuels, and to help defend against a “staggering increase” in claims in the Vaccine Program.
In the U.S. Attorneys’ offices, demand for expert witnesses is at least as high, particularly in mortgage fraud and tax shelter cases. The offices spent $47 million on expert witnesses in fiscal 2009, as opposed to $22 million in fiscal 2005 — a 114 percent increase, according to department figures.
Expert services companies are taking note. Ken Yormark, managing director at LECG Corp. and head of the forensic accounting practice in New York, said the company is working to get on the federal government’s vendor list.
Still, greater demand for expert witnesses in the public sector inevitably leads to greater demand for expert witnesses in the private sector. Yormark said LECG, whose clients are typically from the latter, is ”definitely seeing more activity in the market place.”
“When the bell rings and companies need assistance, they have to call on experts like us to help them,” Yormark said.
