Before accepting an expert witness opportunity, however, it’s important to understand the scope of the work and time involved. Here, we’ll walk through several questions to ask before agreeing to serve as an expert witness.
1) The Facts of the Case
Expert witnesses are often retained near the start of a court case’s discovery process, where facts, documents, and critical information are exchanged between the involved parties. Although the case details are still developing, the hiring attorney should be able to offer a general case overview prior to signing on as an expert.
Asking about the facts helps a prospective expert witness determine whether their expertise can, in fact, assist in testing hypotheses, clarifying details, or explaining technical terms, processes, or procedures. An overview of the facts can also help an expert gauge whether other details, like time commitment and compensation, are appropriate to the work involved.
2) Who is Requesting Your Services?
Expert witnesses are typically retained by either the plaintiff or defendant in a case. Occasionally, they may be retained by an additional party, such as a counterclaimant. Each of these parties has a particular perspective on the case and a particular goal they seek to achieve. As a prospective consultant, it’s important to understand this perspective and goal in order to contextualize your own work within the case setting. You’ll also need this knowledge to understand why a hiring attorney is making certain requests, needs certain experiments carried out, or topics explained. Asking which party you’re assisting can also help to determine whether your services are appropriate for the case opportunity.
3) Responsibilities You Need to Fulfill
Expert witnesses are retained for a variety of reasons, depending largely on case-by-case particulars. For example, some experts are retained as consultants in order to help attorneys understand scientific, technical, or other details related to the case. Other expert witnesses are retained to write an expert witness report on a key case issue, to give a deposition, to appear at trial, or to handle any combination of these tasks. By asking about your anticipated responsibilities in the case, you gain information that can help you determine whether your skills suit the work and whether the time and compensation involved are adequate to the task.
4) Anticipated Time Commitment
Every case differs in its fact pattern and level of complexity—both of which affect the amount of time required to fulfill all anticipated responsibilities as an expert. While some expert witnesses develop their own internal sense of the time required for certain tasks, asking the attorney to estimate the time required has two benefits. First, it provides perspective for both experienced and novice expert witnesses. Second, it allows the expert and attorney to align their expectations early in the process, which can lead to better goal-setting and strategizing throughout the working relationship.
5) Travel Requirements
Travel adds time, stress, and expenses to an expert witness’s work. Though travel may be off the table for some time as court proceedings move to virtual formats, it is important to consider all the aspects of travel for when this option returns. Anticipating travel demands well in advance can help to ensure your collaboration goes smoothly. If you are expected to travel, discuss the time frame, location, means of travel, and associated costs with the attorney to establish all expectations upfront.
6) Compensation
Depending on the expert’s role in the case, expert witnesses receive compensation in various ways. Some experts will be paid by the hour while others will negotiate a retainer and be paid part of their fee upfront. It’s important to get compensation and other payment details in writing in order to avoid later misunderstandings. Laying a transparent foundation on compensation expectations will help the working relationship proceed without conflict. A clear compensation agreement also helps an expert witness decide whether the payment is worth the work involved. By asking a few preliminary questions, you can determine whether an expert witness opportunity is right for you and smooth out any potential bumps down the road in your consulting role.
