When an attorney retains the services of an expert, both parties should confirm the terms of their engagement in writing to avoid any misunderstandings or unforeseen circumstances down the road of litigation. Like any contract, an expert witness retainer agreement should address all the important terms in a comprehensive and clear manner, preferably divided into separate, easy-to-read sections. However, it is important to keep in mind the unique nature of each expert-attorney relationship, and draft each retainer agreement accordingly. It may be tempting to utilize a basic retainer template that broadly addresses the terms, but putting some time and thought into a retainer agreement at the inception can mitigate any future surprises or issues between the parties.
Scope of Services Performed: Be Specific!
The scope of services provision should be the crux of the retainer, and should be as specific as possible. The services that are expected to be performed by the expert should be clearly stated. Whether an expert will testify at a deposition or trial or will be used solely as a consultant needs to be confirmed in the agreement. To ensure that both parties have a clear understanding of the work to be completed, the agreement should include a summary of the general preparation required, the types of materials that need to be reviewed, and any applicable deadlines. In federal courts (and certain state jurisdictions), experts are required to provide a written report to the opposing party pursuant to Rule 26 of the Federal Rules of Civil Procedure, which contains “all opinions the witness will express and the basis and reasons for them.” This requirement should be clearly stated in the retainer agreement.
In some instances, it may be beneficial to schedule a general timeframe for when certain work needs to be completed. Depending upon the particular field of expertise, an expert’s preparation may include reviewing voluminous documents, conducting experiments, or analyzing scientific methodologies. By scheduling and outlining the specifics of an expert’s work, both the expert and the attorney will have a clearer understanding of when certain tasks will be accomplished.
Expert Fees and Expenses
A breakdown of the expert’s rate of compensation is a necessary term to include in any retainer agreement. An expert may be compensated a flat rate or on an hourly basis. The fee provision should specify whether the expert charges different rates for in-court and out-of-court time. In addition, any expenses incurred by the expert that are subject to reimbursement should be itemized, such as the cost of mailings, materials, travel and mileage, lodging, and meals. As part of the fee provision, the expert should provide periodic billing statements to the attorney that must be paid subject to the time stated in the agreement.
Address any Potential Conflicts of Interest
The disqualification of an expert in the middle of trial can be devastating for a case. Thus, it is critical to discuss and memorialize in writing the existence of any potential conflicts of interest. A potential conflict of interest may exist if the expert has been formerly employed by or previous hired as an expert for the opposing party. Ideally, an expert should have no ties to the opposing party at all. However, in certain practice areas or jurisdictions this may not be feasible. When evaluating whether an expert should be disqualified on the basis of a conflict of interest, the majority of courts use a two-prong test – 1) Was it reasonable for the opposing party to believe a confidential relationship existed with the expert? 2) Was confidential or privileged information disclosed by the opposing party to the expert? With the two-prong test in mind, a retainer agreement should confirm that the expert disclosed any potential conflicts to the attorney.
Experts may also be disqualified over substantive reasons, such as their research or testimony in a previous case directly contradicts the theory asserted in the present matter. Therefore, it is important to confirm in the agreement that there is nothing in the expert’s history that can contradict or otherwise undermine his current work.
Include a Confidentiality Clause
If an expert is designated to testify, mostly all written communications – emails, notes, draft reports – will be discoverable under Rule 26 of the Federal Rules of Civil Procedure, its counterpart, Rule 16 of the Federal Rules of Criminal Procedure, and in any state courts that have adopted similar rules. Any documents created by the expert might be discoverable, and as such, experts should not commit anything to writing without first engaging in discussions with the attorneys. This prevents any incorrect draft opinions from being discovered and used by the opposing party to attack the expert’s credibility. It also allows an expert’s opinion to evolve as the case continues, without the expert becoming trapped into a preliminary draft.
Because such a breadth of information is discoverable under the applicable law, it is important to otherwise maintain confidentiality when feasible. The retainer agreement should specify that all communications between the expert and attorney are confidential and should not be disclosed by the expert at any point during or after the case is disposed. Likewise, the agreement should state that the expert will return all materials containing confidential information or protected attorney work product once the litigation is complete.
Like any contract, a retainer agreement should specify how and when the relationship between the parties might be terminated. The clause should include certain “for cause” reasons for termination, such as the expert did not complete a report or the attorney did not provide compensation by the agreed upon time. There may be other reasons for terminating the agreement, such as the case settling before trial. The provision should require written notice of termination served upon the party. It should also include a timeline for the parties to return any confidential materials to each other. Generally, the purpose of the termination clause is to make the dissolution of the attorney-expert relationship as seamless as possible.
Overall, the more time and detail put into a retainer agreement, the more successful the relationship between the parties will be.