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The Expert Witness’ Guide on Creating a Solid Retainer Agreement

When becoming part of a case, the expert witness will need a solid retainer agreement with specific provisions and stipulations about what pay to receive, what work is important for the case and which duties will reimburse the professional when he or she pays for them. This retainer agreement usually is the first step in a lawyer and expert relationship.

The Standard Agreement Provisions

While most retainer agreements have sections defining the terms, provisions and policies necessary between the expert and the lawyer, these sections can change based on the unique relationship important to the case. However, these portions of the agreement generally explain the prices, the compensation, reimbursement, work details and other expectations that the expert should know based on the case or claim for either criminal or civil cases. The lawyer may even need to add more sections based on extra duties such as the reconstruction of the incident. However, the retainer agreement is akin to a contract and requires both parties to finalize it through a signature.

The Payment

The sections regarding duties, work and other tasks the expert has for the case will explain the payment necessary for each. The payment
details may reflect throughout the agreement in different sections based on the title and defined details within the portion of the agreement. Payment can take the place of immediate, hourly, per each duty or reimbursement for items the expert must pay outside of the agreement before the lawyer pays the professional. Reimbursement may require receipts and specific details to ensure the expert receives all money back that he or she paid for the task or duty.

The Original Draft

When all provisions, terms and sections are in place, the lawyer and expert will have a rough draft of the retainer agreement. This rough draft is usually worked over again before a final copy is available for both parties. The sections may also need revision based on new evidence that comes to light, a need for multiple expert witnesses and any other changes that can and often do occur between the original draft and the final binding agreement. The two parties will then have a mutual document that provides information about what the expert will do and what the lawyer will also need to do with the relationship.

The Need for Provisions

There are times when an expert will work for a lawyer and not get paid because the case falls through. Without a proper retainer agreement and provisions that explain what the professional will get in compensation for duties and tasks, the expert may not receive full payment for the completion of the case. These provisions are often a negotiation between the two parties as well, and the expert may need to become flexible based on the claim and any challenges that may arise. The lawyer may only have so many funds available but need additional tasks performed because of the evidence and materials in the claim.

A Solid Retainer Agreement in the Making

Generally, the original draft will proceed through various edits after the lawyer and the expert get down to the specifics of the case. This involves the standard negotiations and the rates of the expert. However, the expert witness usually explains his or her rates before starting with the retainer agreement. Payment and reimbursement are generally not negotiable items unless the professionals are willing to consider these concerns based on the claim or case. A fee schedule is usually the first part arranged with the retainer agreement along with the standard retainer fee which is often up front.

The portions of the agreement usually denote the skills and experience of the expert witness. The longer he or she has been practicing and supporting lawyers through reports and testimony, the higher these fees may become over time. Hours, duties and various tasks are all in writing with specific descriptions to ensure that the expert does not overwork or supply the lawyer with jobs that are outside of the scope of the retainer agreement. Amendments are sometimes necessary based on the additional work that a claim or case may require.

Outlining Exceptions

If the expert and lawyer determine something necessary that is not part of the original retainer, the agreement may have a section for exceptions that will apply. This could lead to an additional payment or a restructured retainer agreement that both professionals agree to before signing. Once all drafts are complete, the two will have a working relationship for the case.

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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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