The Importance of Expert Witness Retainer Agreements
Getting an agreement in writing is important in all aspects of life. However, there are certain situations in which this is extremely important. One such situation is when an expert witness is retained by a lawyer, business or private party.
Purpose of Retainer AgreementA written retainer agreement can help clarify the roles and responsibilities of the parties. Having a written retainer agreement in place can help avoid misunderstandings or avoid potential problems. The agreement should specify all of the terms agreed upon by the parties. Retainer agreements should be specifically drafted and not follow a boiler plate template. Putting special time and effort into a written agreement can help avoid future surprises that can have a significant impact on the case. Specific provisions should be provided on the following topics:
Scope of ServicesThe retainer agreement should specifically state what the scope of the services to be performed will be. If the expert witness will be responsible for creating a report that the person hiring him or her wishes to review, this should be included in the agreement. If the expert witness will need to provide answers during discovery, this should also be mentioned. If he or she will ultimately be called as a witness to testify in a case, he or she should include this information in the retainer agreement.
The more specific the agreement, the better. The agreement may indicate the type of preparation the expert witness will use, the materials he or she may need to review and the need to travel to any particular destination. Specific deadlines should be in the retainer agreement if these will arise within the context of the relationship.
FeesA separate section of the agreement should be solely about expert witness fees and expenses. The amount that he or she charges should be clearly stated, and the way that he or she comes to this amount should also be included. For example, if the expert witness is paid hourly, the hourly rate should be included along with an estimate of the number of hours he or she will charge. If the expert witness charges a flat fee for a portion of the work, such as appearing in court, this information should be outlined.
Additionally, if the expert witness may incur certain expenses, information about reimbursement of these expenses should be included. This might include costs such as mileage, lodging, transportation, meals and materials to complete the work. The expert witness may send invoices for these expenses to be reimbursed or may ask for certain costs to be covered upfront.
Conflict of InterestThe retainer agreement may specify what will occur if a conflict arises. Any conflict of interest should be stated clearly before the expert witness performs work on the case. A conflict of interest may arise if the expert witness has been previously employed or hired by the opposing party or may stand to benefit personally from his or her involvement in the case.
Another potential conflict that may arise may occur if the party who hired him or her does not believe that the expert witness is being honest. His or her testimony in a previous case may directly contradict his or her results in the existing case. It should be confirmed in the agreement that the expert witness has not taken a contradictory stance in another case.
It has occurred in cases that an expert witness has provided testimony that supported the opposing party’s argument. The retainer agreement should specify that if the expert witness reaches a conclusion that does not support the hiring party’s side of the case that he or she should notify the hiring party immediately.
ConfidentialityAn expert witness should sign a confidentiality clause in which he or she agrees to maintain as much confidentiality as feasible under the circumstances. While his or her writings and other documents prepared in anticipation of litigation may ultimately be discovered per federal or state civil rules of procedure, communications between the expert witness and the lawyer should remain confidential.
Hiring an Expert WitnessAn expert witness can have a dramatic impact on a case. He or she may be able to explain elements of the case that would be impossible without his or her level of expertise and ability to clarify this information for judges or juries. Having a written retainer agreement can help establish the relationship between the expert witness, the hiring party and the lawyer in the case.
Provided by HG.org
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.