Expert Witness Agreements Explained
At its core, an expert witness agreement is a contract between an expert witness and a party in a lawsuit, retainer, or other contingency matter. The agreement specifies the scope of the role that the expert will play in the matter, the compensation the retainor will pay to the expert , and other important details. As you’ll learn from reading this guide, there are some very specific details that should be agreed upon by both parties to your lawsuit or other matter requiring the utilization of an expert witness.
Essentials of an Expert Witness Agreement
The scope of work should be clearly defined and include: the case style, time frames, fee schedules, deliverables, and confidentiality agreements. Before hiring an expert witness, this part of the agreement should be carefully reviewed and discussed with the attorney and the litigation support company to avoid any confusion about what will be provided and when. Often, there are multiple phases to a case where an expert witness is required. It is also important to remember that travel time and expenses are often not included in the original scope of work and should be optionally listed on the agreement so that they are not an issue later.
A working fee schedule is often based on the expected level of expertise the firm requires from the expert witness. Most commonly, those levels include; 1) Review and Report Only, 2) Review and Report with Discovery and Interview Participation, 3) Review, Report, and Appearance at Deposition. Fee schedules and deliverables are a topic that should be discussed before any agreement is finalized. Most experts and their firms have a general idea about what they charge, and that is often the best way to first discuss fees and services.
A good agreement should include a clause about confidentiality, especially if the case has not been filed. This clause often allows the litigation support firm to proceed with expert witness research for the client without disclosing the case or parties involved. The provision can be as simple as including a clause that states that confidential information exchanged between both parties is not to be shared. When an agreement like this is initiated, the expert witness and the attorney are appointed, but the name of the case cannot be used for research purposes until the confidentiality is lifted after the complaint is filed.
The body of the agreement should carefully detail the deliverables, timeframes, fees, and billing practices, including how hours are tracked. If the expert witness will be working on a retainer, the entire fee schedule should be included in full. While it may seem like a lot of paperwork, this section should clearly describe how billing is handled. If a typical billable rate is not used, then the entire fee schedule should be outlined.
This section could be considered most important to a legal agreement among experts and attorneys and should be reviewed by a practice group leader or senior staffer before it is signed. It should include the following:
- Regular emailed updates to the client about the case and the work being performed.
- A scheduled call or monthly meeting where progress can be discussed and case strategies reviewed.
- Deliverables should be clearly defined and properly shared with the attorney.
Litigation support firms that offer expert witness services have a duty to their referral sources and to their clients to provide best in class service. Legal agreements are part of establishing an expert witness relationship and should be done in a thoughtful and intelligent manner.
Constructing an Expert Witness Agreement
It is important for an expert witness to have a well-drafted agreement that governs the terms of its engagement. The speaker has seen cases where a bare-bones letter constituted the expert witness agreement and the parties later disputed its construction and meaning. It is not enough for an agreement to be enforceable. It should also be comprehensive to avoid misunderstandings. Consideration should be given to all relevant areas to ensure proper disclosure to the court and the affected party. Likely points of contention include payments, confidentiality pledges and work product.
The speaker believes that it is prudent for counsel to draft and or review an expert witness agreement to make sure that it is properly drafted to protect his client’s interests.
Common Mistakes in Expert Witness Agreements
When it comes to using expert witnesses, even the most experienced attorneys can fall into the trap of inadvertently creating an expert witness agreement with vague or omitted language. While you may be familiar with the scope of the work you’ve discussed with your expert witness, clarity in the contract with the expert witness is paramount. The following are some of the most common mistakes in expert witness agreements:
o Forms of payment – Be sure to specify whether your expert is getting paid by the hour, by the job or in some another fashion. If your expert is retained for a number of projects, then putting in a clause that addresses the form of payment for each job is also helpful.
o Confidentiality and privileges – Sometimes attorneys forget to add the confidentiality clause into their contract with their expert. This should go without saying, but simply reminding your expert that they cannot disclose anything about the case to outside parties will help to protect you, your client and the integrity of the relationship.
o Omitted clauses – Such a simple mistake can prove costly and can leave open areas of dispute in the event of a disagreement. Before sending the agreement to your expert witness, run through our comprehensive section on clauses your expert witness agreement should contain.
The law treats experts as third parties to the agreements they enter into with attorneys and clients. While named as a party to some of the main contracts in a case, your expert is still a third party who acts independently of all involved parties in the case.
Settling on Terms for Expert Witnesses
Establishing the terms of your relationship with an expert witness before you retain him or her to help in your case is vitally important. Because expert witnesses are hired to work on a problem for a discrete period of time and then they’re out the door, the relationship is unlike any other between lawyer and consultant. So the first thing you should do is to write down what you expect the expert’s duties to be, being as specific as you can and covering all the bases.
Fees: A quality expert is going to charge a lot of money. So you might want to ask if he or she will assist in preparing the petition for fee award or seek payment through other means. You probably can’t afford to pay the expert during the case while you hope to get it back later, but you may be able to have a deal for a reduced retainer, so the expert doesn’t think you’re trying to take advantage. The average hourly fee for an expert witness’ work ranges from $345 in the social sciences to more than $1,000 in molecular biology . In the course of discovery, an expert may be asked to produce a report, and you’ll be writing big checks before trial. At this point, with the discovery behind you, an expert may be more willing to hold a retainer or bill only monthly if you ask in advance.
Responsibility: A good suggestion is to avoid giving an expert a role in general litigation matters, including discovery. These tasks run the risk of taking an expert’s focus away from his or her duties to help with an underlying legal matter.
The Length: The average engagement lasts between three and six months, but you’ll need to be clear that the retainer is expected to cover that time and not longer, unless the agreement is changed after you receive a periodic accounting for services performed. In addition to the retainer, your expert will want to know how often he or she will be paid and whether you will be hiring anyone else to review his or her work, or at least part of it.
Legal Constraints and Ethical Considerations
Expert witnesses must adhere to a number of legal and ethical standards throughout their employment. Some of those standards come from the jurisdictions in which the expert witness is located, while others come from attorney principles.
For the most part, an expert witness must conform to the rules of the jurisdiction in which the witness resides or the jurisdiction from which the case is coming from. Most have some kind of ethical principles that an expert witness must follow. For example, in the United States, the Federal Rules of Evidence and the Federal Rules of Civil Procedure both have provisions relating to expert witness conduct, and many states have similar standards.
In addition to conforming to legal standards set forth by the jurisdiction in which the expert witness is located, the expert must also conform to the internal and external standards of the parties retained for the engagement. At the beginning of any expert witness engagement, a written agreement should be entered into between the expert witness and the attorney(s). Most agreements define the services to be provided and the basis of compensation. These agreements also specify that the expert will be expected to abide by the rules and regulations set forth by the jurisdiction or agency overseeing the work. In other situations, such as in the case of government contracts, the expert witness will be asked to follow certain rules and regulations set forth by the government.
The ethical standards set forth by the American Academy of Matrimonial Lawyers provides some guidance concerning expert witnesses. Rule 1 states, "a lawyer should not spread publicity concerning the status of a case that is false or misleading. A lawyer shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and that will have a substantial likelihood of materially prejudicing an adjudicative proceeding. . ."
In medical malpractice cases the use of expert witnesses is often questioned, so if an attorney wishes to ensure that an expert witness maintains medical records in order and makes certain they do not stray from the information in those records, they can enter into a contract with the witness which makes it explicit that the witness will be required to do so. Also, if an expert witness becomes aware that there are inaccurate statements included in a work product prepared for the attorney they must disclose those inaccuracies and make sure that corrections are detailed and sent to the court.
Engagement letters, or expert witness retention agreements, are another area where conscientious expert witnesses have often gotten into trouble. There have been many instances in which the retention agreements between expert witnesses and attorneys have been scrutinized in court. Unfortunately, many expert witnesses simply sign the engagement letter without reading it. When this has occurred, expert witnesses have been found to be in breach of agreement of confidentiality and it has often resulted in material witnesses becoming unavailable for trial.
Expert witnesses should be apprised of their legal and ethical obligations at the outset of the engagement. Specific contractual requirements can be put into writing when retaining the services of an expert witness, but it is important that the hiring attorney be forthright about the requirements of the engagement and not wait until the end of the engagement to disclose them.
Implementing an Expert Witness Agreement
When an expert authorizes a party the right to disclose the agreement with you, a party can use the agreement and/or any pages from your report as a basis for compelling a deposition of the expert or using the document in cross examination of the expert witness. It is always better to provide the pages as requested so that the pages can be used properly. If the information is not disclosed, the expert should disclose the portions of any report, and the pages requested in the deposition. To the extent you need to disclose/reveal the pages yourself, you can do so in accordance with the agreement. For example, you may also want to request permission from the expert to state, "as set forth in my agreement with Party X, pages 1, 3, 12 through 22 are properly produced as I am authoring this report." If you are compelled to produce the pages, you could bring that agreement in and have the agreement entered as a Court Exhibit and your testimony that the pages are to be produced as rebuttal testimony to confirm information may be utilized.
If you wish to enforce the agreement, the first step is to attempt to reach an agreement between the expert and the attorney requesting the pages. If that does not work, the expert may have to file a motion to compel and/or motion for protective order. If the motion for protective order is granted, you can prevent the opposing party from obtaining the information sought. The court may also overrule the request for pages if it finds that the information contained in the pages (or for a deposition) is immaterial, irrelevant, or incomplete. If the motion to compel is denied, the Court might issue a monetary sanction as a result of the breach.
Case Studies and Practical Applications
Case studies and real world examples help to understand the nuances of expert witness agreements and how different provisions are applied and enforced. This section will define what an enforceable expert witness agreement looks like, to help you follow the law and avoid a surprise down the road.
One common scenario is where an expert witness performs work for someone who later becomes your opponent. In one case, a Georgia court enforced an expert agreement because the expert did not alert his previous party when he started work with an opposing company. McKenzie v. FMR LLC, 708 S.E.2d 461 (Ga. App. 2011). Some lessons from this case include (1) an expert agreement should require the expert to give notice of future work with opposing parties and (2) an expert agreement should prohibit an expert witness about to be retained from working on behalf of clients who have opposing interests.
Similarly, in Texas, the court upheld a non-disclosure agreement and right to enjoin a former expert’s work for an opponent where the expert had not given notice of an intent to work for opposing counsel. Bell Helicopter Textron , Inc. v. Spradlin, 2009 WL 3673828, at *11-12 (Tex. Ct. App. Nov. 6, 2009) (enforcing an agreement where the expert had not given an opportunity to buy his rights). This case demonstrates that timely notice should be given.
In Minnesota, a court also upheld a non-disclosure agreement prohibiting an expert from working for a client where knowledge of the opposing product was an important aspect of the expert’s work. Atreus Tech. v. HBM Int’l, 828 N.W.2d 793 (Minn. Ct. App. 2013). This is one more helpful example of how non-disclosure clauses can be drafted and enforced.
Other indications of the importance of expert witness agreements can be seen in the 2004 Illinois case of Verona v. Du Page County because the court virtually upheld an entire expert agreement and rejected a challenge under the First Amendment. 734 N.E.2d 1019 (Ill. App. Ct. 2004). Because both the defendant and outside scientist had signed separate and detailed expert witness agreements with plaintiff company it was clear what the terms were and violated none of their rights.