Why Expert Witnesses Should use a Retention Contract

Expert Witness Retention Contracts

So as I said now ad nauseam before you start working on the case you should have two things, you should have a check in hand and you should have a signed retention contract, retention agreement. Those are the two things you want do before you start working on the case.

Now, more about the expert witness contract. First thing to remember is that a well-drafted retention agreement can prevent or solve over 90% of the likely problems you’re going face as an expert witness. And because you really don’t want to have unnecessary problems that you can’t deal with as an expert witness, it just makes so much sense to have a contract that’ll protect you to either mitigate or eliminate those problems. So although a lot of experts work without a written retention agreement and most of the time you’re gonna be just fine without that because problems aren’t going to arise. When problems do arise, when that ship starts sinking, you want to have a life raft and…or you want to have a bilge pump, whatever the analogy is, and a retention agreement really can do the trick for you. We’re going to talk in detail about that in a couple of minutes here.

So we talk about problems and we’ll see this in a couple of minutes as well, a lot of them, probably the majority of them have little or nothing to do with getting paid, although getting paid is certainly the one that people focus on a lot.

We talked about trying to figure out if this is a stand-up lawyer that I would want to work with. And, if you send a lawyer your reasonable retention agreement that’s been signed by other attorneys or in the case of, for example, SEAK’s agreements have been signed by tens and tens of thousands of law firms and attorneys. The attorney’s refusal to sign that is a huge red flag that, “Hmm, I don’t want to work with that lawyer.” When a lawyer says something crazy like, “we don’t sign no contracts, no expert has ever asked me to sign a contract,” those things are just not true or realistic.

When you send your expert witness retention contract to the lawyer, the lawyer may suggest some changes. And I think it’s reasonable to consider the changes if they are justified by the circumstances, but it depends upon what those changes are. So in our contract that Chip uses, he likes to tell this story which to me is mind-boggling where he sent it…his…he adapted our contract, it’s not the exact one that we have. Chip likes to tell the story where there’s a clause in our contract that states that the attorney must abide by his or her professional rules of ethics. And the attorney objected to that language in the contract. Now, Chip thought that that was just wonderful and his response was “no problem, find yourself another expert,” which he said politely.

But you know, you really need to see what they’re asking you to take out. If it’s, “Okay, I don’t want the litigation to be in Massachusetts because of X, Y, and Z. I don’t want it to be arbitration, I want it to be litigation.” Okay, no problem, you can probably give on points like that. But it really depends upon what they’re asking you to do and I would at least you know, entertain you know, what those requests are, I think that’s a reasonable thing for you to do.

When you draft your expert witness retention agreement the ultimate driver of what operates and gives you some leverage in the agreement is specifying the terms by which you can withdraw from the case. The lawyer is not paying you, the lawyer is asking you to do something unethical, the lawyer is asking you to do something outside of your area of expertise, whatever it may be. And that’s the protection that you get from…that’s the main operating protection that you’re going to get from a retention agreement, specifying the terms by which you know, I can get out of this, I’m out of here. Because you don’t wanna go down with the ship depending upon what’s going on. Your contract is gonna be discoverable even in federal court. So it needs to reflect positively on you, you don’t want to have any dumb stuff in there that’s going to reflect negatively.

Finally, as we talked about before, a well-drafted retention agreement makes you look seasoned and serious. And it’s going to help you get high-quality business and help discourage expose lawyers who you wouldn’t want to work with anyhow, we already talked about that. So you sent over the retention agreement, it looks like it ain’t your first rodeo because you have this well-drafted retention agreement it looks like you’re serious about your expert witness work. Both of those things are positive because the dirty little secret in expert witness work is typically speaking nobody wants a virgin. There’s some you know, hidden pitfalls that experience or training can uncover and the experts really prefer somebody that knows the ins and outs of expert witnessing and the nuances of this work. And sending over to the lawyer a well-drafted retention agreement telegraphs to the lawyer that you’re seasoned and that you know what you’re doing, that you’ve either had some training you’ve had some experience.

Before we move on let me give you an example of a problem from the discoverability of an expert witness contract. So a number of years ago maybe 10 years ago I was hired to do a, you know, 360 review of an expert witnesses’ practice to give them holistic advice on how to make more money. So one of the things that… This expert was making a lot of money and they want to make even more money. So one of the things that this expert was concerned about was when their financial records get subpoenaed. And I actually have a consult this afternoon with another expert whose tax returns and 1099 Forms from expert witnessing for the last four or five years of being subpoena, so I’m gonna be speaking with her right after lunch, today.

So what this expert decided to do you know, which was my eyes popped out of my head when I read this, he wrote in his contract that if his tax returns or other financial information about expert witnessing was subpoenaed that would result in his withdrawing from the case. And I looked at this I’m like, “This ain’t ever gonna fly.” So I called him up and I yelled at him, I go, “Look, you’re gotta take this out.” “Well I don’t wanna give that stuff up.” I go, “Look, if you leave that in there the lawyer’s gonna subpoena your agreement. The minute the lawyer gets the agreement the next subpoena’s gonna be for your tax returns because he means it…because he knows that that’ll make you leave the case. So it’s a self…it’s…you’re giving the lawyer ammunition to get you thrown out of every case that you’ve been retained on. And you’re giving the lawyer…you’re telegraphing to the lawyer that you don’t wanna talk about money, so the lawyer’s gonna suspect that there’s something there. So you have to be careful that you know, whatever is in that retention contract is something that you wouldn’t mind being in front of a jury or you wouldn’t mind being in the hands of the opposing counsel because in effect that’s where it’s gonna end up.

SEAK is the expert witness training company. What you have just seen has been excerpted from SEAK’s course, “How to Start, Build, and Run a Successful Expert Witness Practice.” Thank you for watching.