Recover Expert Witness Fees Under FEHA If You Plan it Right

Litigation attorneys frequently think about making a settlement offer under Code of Civil Procedure section 998.  If the defendant does not accept the offer and the plaintiff achieves a result that is greater than the offer, the Court can award expert witness fees.  Let’s face it – expert witnesses represent a large portion of the overhead costs in civil litigation.  Frequently, expert witness fees can exceed $20,000 even in a straightforward case,.  This is particularly true if you hire an expert located in another city or another state.  Expert witnesses want their money whether you win or lose. Frequently, you must pay experts up front.

Now let’s turn to employment cases under California’s Fair Employment and Housing Act (“FEHA”). Under FEHA, section 12965, “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”

Plaintiffs and practitioners alike should keep this important provision in mind even if an offer to settle under Code of Civil Procedure section 998 was made.

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