Litigation/Jul 23, 2012

Taxable Costs and Reasonable Attorney Fees

Under Michigan law, a party who prevails at trial is entitled to recover taxable costs.  Michigan Court Rule MCR 2.625(A)(1) sets forth this rule.  Certain litigated matters go through a process called “case evaluation”.  Under the case evaluation court rule, a party who rejects case evaluation and who does not better his position at trial may be forced to pay the other party’s taxable costs and attorney fees arising after case evaluation.

Most Michigan trial attorneys are familiar with these rules.  However, when it comes time to tax expert witness fees, things become a little less clear.  While a prevailing party may properly tax an expert witness fee, not all fees charged by an expert may be taxed.  For example, expert witness fees pertaining to educating trial counsel, developing strategy and assessment of the other party’s positions are NOT properly taxable.  On the other hand, travel expenses of an expert witness and preparation time to testify and actual courtroom time are compensable and may be taxed.

The Michigan Court of Appeals addressed expert witness fees and attorney fees in the context of taxing costs in the published case of Van Elslander v Thomas Sebold & Associates, Inc., decided June 28, 2012, Docket No. 301822, found at: http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20120628_C301822_52_301822.OPN.PDF.

In Van Elslander, one of the testifying experts did not properly track his time, making it impossible for the Court of Appeals to determine whether the expert’s time was for educating trial counsel (not taxable) or for preparing to testify (taxable).  The Court of Appeals sent the case back to the trial court to determine, if possible, from the expert’s billing records and testimony what portion of the expert’s time was properly taxable.

A word to the wise: trial counsel should advise and explain to all experts who might testify at trial the ins and outs of Michigan law as it relates to taxing expert witness fees.  This will ensure your expert properly records his time, giving your client the best chance to recoup expensive expert witness fees.

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