By James J. Mangraviti, Jr., Esq.
Expert witnessing can be a challenging endeavor. Fortunately, many of the issues experts face can be mitigated or eliminated by using a well-drafted expert witness contract. The below post provides advice on what to include in your expert witness contract. At the end of this post there is also a link to a standard form, widely used and accepted expert witness contract.
Areas Where a Well-Drafted Expert Witness Contract Can Protect You
Common issues that should be addressed in a well-drafted expert witness contract include:
- Retaining counsel refusing to pay for time that counsel argues should be non-billable. A well-drafted expert witness contract should make clear that all of the expert witness’s time spent on the case is billable. Furthermore, your expert witness contract should make explicitly clear that categories of time spent on activities such as reading and signing depositions, preparation time, and waiting time are fully billable.
- Your deposition fee being reduced after a motion for a protective order by opposing counsel. The rules of discovery typically provide that opposing counsel is responsible for paying the expert a “reasonable” fee for the expert’s discovery deposition. This can lead to many problems. Opposing counsel will often object to an expert witness’s deposition fee as being unreasonable because of the amount of the fee, minimums claimed, or for the expert charging for preparation time. To avoid these problems your well-drafted expert witness contract should specify that retaining counsel will pay your full fee for all deposition time and that it is then retaining counsel’s problem to chase opposing counsel for reimbursement.
- Being intentionally conflicted out of a case by a lawyer who retained you for the sole purpose of denying your availability to the opposing side. Lawyers will sometimes try to retain all the best experts in a field in order to prevent these experts from being hired by the opposing side. If the expert witness contract specifies that the expert’s retainer is refundable the expert runs the risk of being barred from working for others on the case and at the end of the day not receiving any compensation at all. Here’s how that would work. Something bad happens where Corporation A thinks they are going to face major lawsuits. In response, Corporation A’s attorneys start hiring all the top experts and have these experts agree to refundable retainers. The corporation has no intention of using the vast majority of these experts, they just want to conflict the experts out from working on the plaintiff side. When the case is resolved Corporation A asks for a refund for the retainers paid to the experts they hired as the experts did no work. The above scenario can be mitigated by specifying in your expert witness contract that the initial retainer shall be non-refundable. With a non-refundable retainer you will still be conflicted out of working for other parties but at least you will be paid your retainer.
- Payment Issues. Expert witnesses all too often encounter problems with collecting payment. There are many clauses that can be included in an expert witness contract to mitigate this risk including: the expert not releasing their report until all bills are up-to-date, the expert not testifying until all bills are up-to-date, advanced payment for depositions, advanced payment for trials, interest accruing on late payments, attorneys fees and costs awarded for collections, the law firm, not the law firm’s client (who may not be well-funded) being responsible for payment, applying the retainer against the final invoice, and replenishable retainers.
- Rushed/low budget opinions. Expert witnesses are sometimes asked to form opinions without being given adequate time or information/resources. A well-drafted expert witness contract should make clear that the expert needs to be provided with sufficient time and information/resources to form their opinions.
- Not being properly prepared to testify at deposition or trial by the retaining lawyer. A very common occurrence facing expert witnesses is not being properly prepared to testify by retaining counsel. A well-drafted expert witness contract should specify that the retaining counsel will prepare the expert to testify for both deposition and trial.
- Short notice cancellations A well-drafted expert witness contract will provide well-defined and meaningful cancellation fees for short notice cancellation of scheduled deposition or trial testimony.
- The retaining attorney disclosing your opinions without your permission or sign off. Retaining lawyers will sometimes disclose their expert’s opinions the opposing side without the expert being involved in drafting the disclosures. This will all too often result in language being included in the disclosure that is inaccurate, false, exaggerated, or beyond the scope of your expertise. A well-drafted expert witness contract will include a clause requiring retaining counsel to obtain your advanced sign off on any disclosures or answers to interrogatories summarizing the expert’s qualifications and opinions.
- Storage costs/logistics. A well-drafted expert witness contract will make clear that the expert is under no duty to store/retain case materials after the conclusion of the case. This clause could state that at the conclusion of the assignment the expert will either ship the case files back to retaining counsel at retaining counsel’s expense or destroy the materials.
- No escape hatch. A well-drafted expert witness contract should have a clause that allows the expert to withdraw from the assignment if retaining counsel breaches any of their obligations under the expert witness contract.
A well-drafted expert witness contract will address many of the common challenges expert witnesses may face. For those that do not have the time or wherewithal to draft their own custom expert witness contract a standard form expert witness contract from SEAK, Inc. is available. SEAK is The Expert Witness Training Company and its standard form contract has been used by thousands of experts and agreed to by many thousands of law firms.
About the Author
James J. Mangraviti, Jr., Esq., is a Principal of SEAK, Inc – The Expert Witness Training Company. Since 1996 Jim has trained many thousands of expert witnesses on report writing, testifying skills and practice management/business development. He has been retained to train experts for the FBI, SEC, IRS, DoD as well as leading firms, corporations, and professional associations. Jim has co-authored numerous texts on expert witnessing. His is the co-author of SEAK’s Expert Witness Retention Contract – which is in used by over 2,000 expert witnesses and has been agreed to by many thousands of law firms. Jim can be reached at 978-276-1234 or firstname.lastname@example.org. For more information on SEAK, Inc. – The Expert Witness Training Company, visit www.testifyingtraining.com