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The Importance of Retainer Agreements

The document discusses key elements that should be included in an expert witness retainer agreement between an attorney and an expert. It recommends including sections that define the scope of services, fees and expenses, address potential conflicts of interest, include a confidentiality clause, and specify terms for termination. Drafting a comprehensive retainer agreement that clearly outlines all important terms can help avoid future issues between the expert and attorney.

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David Mac McCracken
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50 views

The Importance of Retainer Agreements

The document discusses key elements that should be included in an expert witness retainer agreement between an attorney and an expert. It recommends including sections that define the scope of services, fees and expenses, address potential conflicts of interest, include a confidentiality clause, and specify terms for termination. Drafting a comprehensive retainer agreement that clearly outlines all important terms can help avoid future issues between the expert and attorney.

Uploaded by

David Mac McCracken
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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WHITE

PAPER
SERIES

EXPERT WITNESS RETAINER AGREEMENTS


Everything You Need To Know
TABLE OF CONTENTS

03 Introduction

04 Scope of Services Performed

05 Expert Fees and Expenses

06 Address any Potential Conflicts of Interest

07 Include a Confidentiality Clause

08 Termination

2
INTRODUCTION

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.

www.theexpertinstitute.com 3
SCOPE OF SERVICES PERFORMED

The scope of services provision should be the should be clearly stated in the retainer
crux of the retainer, and should be as specific as agreement.
possible. The services that are expected to be
performed by the expert should be clearly stated. In some instances, it may be beneficial to
Whether an expert will testify at a deposition or schedule a general timeframe for when
trial or will be used solely as a consultant needs certain work needs to be completed. Depending
to be confirmed in the agreement. To ensure that upon the particular field of expertise, an expert’s
both parties have a clear understanding of the preparation may include reviewing voluminous
work to be completed, the agreement should documents, conducting experiments, or
include a summary of the general preparation analyzing scientific methodologies. By scheduling
required, the types of materials that need to be and outlining the specifics of an expert’s work,
reviewed, and any applicable deadlines. In both the expert and the attorney will have a
federal courts (and certain state jurisdictions), clearer understanding of when certain tasks will
experts are required to provide a written report be accomplished.
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

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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.

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ADDRESS ANY POTENTIAL CONFLICTS OF INTEREST

The disqualification of an expert in the middle With the two-prong test in mind, a retainer
of trial can be devastating for a case. Thus, it is agreement should confirm that the expert
critical to discuss and memorialize in writing the disclosed any potential conflicts to the attorney.
existence of any potential conflicts of interest. A
potential conflict of interest may exist if the expert Experts may also be disqualified over substantive
has been formerly employed by or previous hired reasons, such as their research or testimony in a
as an expert for the opposing party. Ideally, an previous case directly contradicts the theory
expert should have no ties to the opposing party asserted in the present matter. Therefore, it is
at all. However, in certain practice areas or important to confirm in the agreement that there
jurisdictions this may not be feasible. When is nothing in the expert’s history that can
evaluating whether an expert should be contradict or otherwise undermine his current
disqualified on the basis of a conflict of interest, work.
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?

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INCLUDE A CONFIDENTIALITY CLAUSE

If an expert is designated to testify, mostly all Because such a breadth of information is


written communications – emails, notes, draft discoverable under the applicable law, it is
reports – will be discoverable under Rule 26 of important to otherwise maintain confidentiality
the Federal Rules of Civil Procedure, its when feasible. The retainer agreement should
counterpart, Rule 16 of the Federal Rules of specify that all communications between the
Criminal Procedure, and in any state courts that expert and attorney are confidential and should
have adopted similar rules. Any documents not be disclosed by the expert at any point during
created by the expert might be discoverable, and or after the case is disposed. Likewise, the
as such, experts should not commit anything to agreement should state that the expert will return
writing without first engaging in discussions with all materials containing confidential information or
the attorneys. This prevents any incorrect draft protected attorney work product once the
opinions from being discovered and used by the litigation is complete.
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.

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TERMINATION

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.

www.theexpertinstitute.com 8
NEW YORK CITY | LOS ANGELES | DALLAS

www.theexpertinstitute.com

[email protected]
888-858-9511

www.theexpertinstitute.com

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