Expert Witness Contracts – What to Include
I’m Steve Babitsky, President of SEAK, Inc. I’m here today with Attorney James Mangraviti, and we’re going to be talking about a very important topic for expert witnesses; the expert witness retention contract.
Jim, why is it important for experts to have a well drafted expert witness retention agreement?
Jim Mangraviti: Okay, well, thanks for the introduction, Steve. As you know, we deal with expert witnesses. We help expert witnesses as the expert witness training company, and we interact with experts on a daily basis. And a lot of what we field are calls and complaints from experts about how basically they’re getting screwed over by retaining counsel for things that could have been avoidable had they had a well written expert witness contract.
So without a well written contract, bad things can happen to you as an expert witness, and you really want to have one or you’re going to get taken advantage of or there can really be liability for you. So it’s like the American Express card if we can date ourselves, you don’t want to leave home without one if you’re an expert witness.
Steve Babitsky: So let’s talk about some of the problems that arise if you don’t have a well drafted expert witness contract.
Jim Mangraviti: Sure. The first problem would be not getting paid, and that’s a very common problem that expert witnesses tend to have. We train expert witnesses all the time. You know, almost all of them have been stiffed over the course of their careers. So there’s a bunch of little, simple things that you can do in your contract to help mitigate this possibility.
One of the first things that you can do is make sure that the contract that you write is written with the law firm and not the law firm’s client.
What will happen is the contract that’s written with the law firm’s client and it becomes a collection problem, that client may not have any money and the expert may be out of luck, especially if the case is lost. Number two, if it comes down to a collection situation, putting in a clause for attorney’s fees and interest will definitely be of help, okay? You want to have many clauses in the agreement that gives you leverage as an expert witness to ensure collection.
So, for example, one of the clauses that we have in our agreement as an example is the expert will not release a report until he has been paid. So the expert can kind of hold that report as leverage against the lawyer until releasing it. Also, we make sure that our experts under our contract get paid before they show up to testify in court or at a deposition. So getting paid is a huge one.
A second common problem that expert witnesses face is incomplete documentation. What do I mean by that? The retaining lawyer doesn’t send them all the documents, okay? We have a clause in our contract. We recommend that you put it in yours. It requires the lawyer, that the lawyer promises to send you everything that’s arguably relevant. It gives you a little bit of protection in that area.
Another simple problem is storage cost. Let’s say you work on a case that’s got a huge number of documents, okay? And bankers boxes after bankers boxes of documents. Do you want to be keeping this stuff until the end of time? No, so we have a clause in our contract that says, which we would recommend that you do something similar. It says, “Listen, at the end of the assignment we’re going to box up all the materials and send it back to you at your request, or we’ll shred it. We’re not going to hold on to these things unless there’s another reason why the expert needs to hold on to the documentation.”
Number four, you want to have language in there dealing with, at least, the potential of an unethical attorney. Unfortunately over the years we have heard, Steve and I have heard a number of horror stories from the experts we’ve worked with with lawyers who are suffering from, as Dr. Tom Gutheil would say, attorney hypoethicality which is not a good thing. So you want to have a clause in your agreement that states that the lawyer must abide by all applicable ethical standards for an attorney.
And the fifth thing that I would mention, there’s a whole list that you want to have in your contract, is a lack of preparedness. There’s really an epidemic in this country of lawyers who, for various reasons, will refuse to prepare their expert witnesses to testify at either deposition or trial.
What you really want to have in your contract is language that states, “Hey you, lawyer, you better prepare me,” okay? And the operative clause that makes all of these things stick is that you want to have a clause in there that says, “If the lawyer breaches any of these duties, then you, as the expert, have a right to withdraw.”
Now we wouldn’t recommend that you loosely exercise that right. We call it “going nuclear” but you want to have that right to withdraw from the case to put pressure on the lawyer to get them to do what they need to do to be ethical. And so you can do your job properly.
Steve Babitsky: Jim, what special dynamics are in play when drafting an expert witness contract?
Jim Mangraviti: Good question. So expert witness retention contracts are a special animal. Like a lot of things in expert witnessing, what kind of makes it unique, in one sense, is that it’s discoverable. What do I mean by that? Anything that you write in your expert witness retention contract can be used by opposing counsel to rip your throat out on cross examination or at deposition. So you’ve got to be really, really careful what you put in your contract.
I’ll give you an example. I was mentoring and working one-on-one with an expert witness who really didn’t like the fact that the other side had subpoenaed his tax returns, didn’t like that at all. So he put in his contract the fact that if my tax returns are subpoenaed I’m going to withdraw from the case.
I said to this guy, I said, “You know, sir, you really don’t want to do that because the minute the other side sees that, they are going to subpoena your tax returns because they know that you don’t like it, to get you to withdraw from the case.” “Oh yeah, I never really thought of that.” So your contract is discoverable.
The other thing that you need to keep is that, you know, your contract has to be well balanced. You can draft a contract that is extremely one-sided to you, but you’re not going to get a lawyer to sign that unless you’re the only expert in the world, and it’s a huge case. So you’ve got to have some balance in your contract, okay? So be careful, you can be cross examined on it. It has to be balanced with something that lawyers are going to be willing to sign. That’s two things I would worry about.
Steve Babitsky: Well, Jim, what resources does SEAK provide to assist expert witnesses with their expert witness contracts?
Jim Mangraviti: Thanks, Steve. What we actually have is we actually have an expert witness retention contract that experts can download from our website, and the genesis of this is, as I mentioned previously, we get calls pretty much on a daily basis where experts have really gotten taken advantage of by retaining counsel.
And over the years we took note of all of these circumstances that keep coming up again and again and again and again, and we drafted a contract to address all of these situations. And the contract is currently being used by 2,000 experts successfully, and it’s something that experts can download, and then they can adapt it to their own particular needs. It’s something I would highly recommend.