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Key Provisions to Include in Your Expert Witness Retainer Agreement

The expert witness retainer agreement is something that both the lawyer and the professional hired to act as the expert witness in the trial will negotiate before any services rendered will require a more clear understanding of what the expert needs. With these retainer agreements, there are sections that explain each type of fee and details about how much the expert can expect.

Scope of Performances for the Case

Often, cases are unique and require a certain definition of what the expert will do for the case. These services usually have particular details attached such as performing tests on evidence, forming opinions to testify in the courtroom or only creating a report and not entering the courtroom to testify for the lawyer and client. Some professionals will recreate the accident through reconstruction that defines the incident through a timeline with all elements understood and explained through the reconstruction. Others will testify in the courtroom and explain confusing details, detail the opinions the expert has and other processes to support the case.

Extra Activities for the Case

Some experts will need to perform additional activities for the case such as copying documents, traveling additional miles for
certain reasons and filing paperwork. Some professionals may need to communicate details to contacts while others will use the internet to assist the case. Some professionals have computer experience and may need to set up equipment in the courtroom. Certain cases also involve civil matters where the expert will need to testify about confusing aspects of the case that only the professional truly understands because of education or experience. One professional may need to provide services through
therapy or a psychological profile.

Specific Details

The expert witness attached to the case usually negotiates the terms of the contract personally with the lawyer. He or she will need to consider very specific material in the contract before the end of the negotiations. Specific terms are important to ensure that the contract does not require aspects of service and scope of performance outside the range of what the professional can provide. Particular provisions can also protect the expert from other issue that could arise in the contract. Some specifics may also determine what duties are necessary and which incur additional fees.

Expenses for the Case

The expert will need to list what expenses he or she will require compensation for with the case. These usually entail travel, lodging, food and payback for items the expert must pay for initially. This section of the retainer agreement often has a list of these expenses and how much the person will need based either through a flat rate or an hourly basis. In and out of court fees should specify either the same or different costs as well as any additional matters attached to these lists. Reimbursement for itemized concerns should also occur in this section of the retainer agreement.

Conflicts of Interest

It is important for both the lawyer and the expert witness to list any possible conflicts of interest that may occur. General information usually leads to more specific instances where the professional could engage in a conflict because he or she worked with the other legal professional in the past. Other conflicts can arise if the expert speaks with the other lawyer or has direct involvement in certain aspects of the case that can directly oppose the current team he or she is on. If there are any other concerns, this section should detail the problem.

Confidentiality Clause

The expert may need to testify in the courtroom, provide written communications and also test evidence. The confidentiality clause can protect both parties in the case and may conceal details from others. With this clause in place, the expert usually must engage in a discussion with the lawyer before revealing anything about the case to any other professional. This can also limit inaccuracies, avoid opinions affecting the case and restrict what the other legal team can use against the lawyer and expert. The clause can also ensure the expert has the opportunity to evolve his or her opinion without problems in early drafts.

The Termination Clause

A retainer agreement should also have a section about the relationship ending between lawyer and expert witness. If there is a specific reason for the termination, it usually exists in this section. Other terms may explain how the expert can return to life even if the case is not over. The termination dissolves the relationship between professionals.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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