How to retain an expert: steps, contract and on-going relation
The previous pages explain the role of the expert witness, why you need an expert, where to find one, when to hire one and how to select and vet the best candidates to end up with your final selection. This section explains the requirements, the contracting and the ongoing relation between the expert and his retaining attorney.
By law, the attorney engaging and retaining an expert witness must first ensure that the selected candidate is free of conflicts (your opponent will surely runs this check before the deposition). From the expert’s perspective, being void of conflicts means not working for and against the same client at the same time on the same case. The expert’s view of conflicts and the rules of ethics relative to conflicts are far different for the expert than the engaging law firm or attorney.
Before retaining the expert, an attorney must:
1. Disclose the names of all the parties to the litigation, any “interested” parties, i.e., corporate entities, subsidiaries, etc. and disclose the law firms and attorneys representing the opposing parties, including co-counsel in different states because of venue requirements.
2. Determine if the Expert has entered into any Non-Disclosure Agreements with company’s party to the suit or that could otherwise restrict the Expert’s ability to work and be exposed to confidential information or that would otherwise cause a motion to disallow the Expert from working on the case.
3. Ensure the Expert’s schedule is compatible with the case schedule for which he/she is being considered.
4. Confirm with the Expert and obtain an agreement with respect to the hourly rate of the Expert and any special requirements in the Expert’s fee schedule, i.e., payment for travel, expense limitations, travel restrictions, etc.
Most large law firms, referral companies and individual experts have a standard retention letter. All these Agreements have to be somehow merged to accommodate all the interested parties. At a minimum, the engagement agreement must contain:
1. Stated agreement between the named parties.
2. Matter for which the expert is being engaged.
3. Names of the parties and law firms.
4. Language restricting the Expert from working for the opposing party.
5. Statement of the expert’s hourly rate.
6. Statement of the retainer or deposit amount required.
7. Expense limitations, if any.
8. Payment terms and rights with respect to delinquency.
9. Names of the financially responsible party.
10. Confidentiality and/or privilege work-product language.
11. Dispute resolution
12. Written, i.e., signature, acknowledgement of all parties to the retention.
Ultimately, the client who has hired a law firm to represent them in litigation, including the engagement of Expert Witnesses, is financially responsible for the Expert’s fees and expenses. What can differ is the contractual means through which this payment arrangement is consummated. Some large law firms require that the Expert’s retention be directly with their client, the “end-client,” and that they be invoiced directly for Expert fees and expenses, but this relatively unusual. Normally the attorney managing the work product of the expert approves the expert’s invoice and forwards it to the end-client for payment. Retention by some law firms is directly with the law firm who pays for the Expert’s fees. They in turn will seek reimbursement for these fees from the end-client.
Let’s review the overall process of engaging the Expert and how the expert functions with the law firm and litigation team. This sequence is more or less ordered:
1. Engagement Letter consummated.
2. Protective Order and any non-disclosure agreements consummated.
3. Expert briefed by litigation team.
4. Expert analyzes all relevant documents provided by or directed to by the litigation team, or participates in the dialogue with the opposite party / discovery requests if the expert was hired early enough.
5. The Expert consults with the litigation team on all technical matters.
6. The Expert assists in the preparation of the claim, hearing, preparation of report and formulation of deposition questions of opposing parties and Experts.
7. The Expert prepares expert report(s).
8. Expert deposition.
9. Expert trial testimony.