![]() Therefore, it is important to confirm in the agreement that there is nothing in the expert’s history that can contradict or otherwise undermine his current work. When evaluating whether an expert should be disqualified on the basis of a conflict of interest, 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? With the two-prong test in mind, a retainer agreement should confirm that the expert disclosed any potential conflicts to the attorney.Įxperts may also be disqualified over substantive reasons, such as their research or testimony in a previous case directly contradicts the theory asserted in the present matter. ![]() However, in certain practice areas or jurisdictions this may not be feasible. Ideally, an expert should have no ties to the opposing party at all. A potential conflict of interest may exist if the expert has been formerly employed by or previous hired as an expert for the opposing party. Thus, it is critical to discuss and memorialize in writing the existence of any potential conflicts of interest. The disqualification of an expert in the middle of trial can be devastating for a case. Address any Potential Conflicts of Interest 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. 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. ![]() The fee provision should specify whether the expert charges different rates for in-court and out-of-court time. An expert may be compensated a flat rate or on an hourly basis. ![]() Expert Fees and ExpensesĪ breakdown of the expert’s rate of compensation is a necessary term to include in any retainer agreement. By scheduling and outlining the specifics of an expert’s work, both the expert and the attorney will have a clearer understanding of when certain tasks will be accomplished. Depending upon the particular field of expertise, an expert’s preparation may include reviewing voluminous documents, conducting experiments, or analyzing scientific methodologies. In some instances, it may be beneficial to schedule a general timeframe for when certain work needs to be completed. In federal courts (and certain state jurisdictions), experts are required to provide a written report 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 should be clearly stated in the retainer agreement. To ensure that both parties have a clear understanding of the work to be completed, the agreement should include a summary of the general preparation required, the types of materials that need to be reviewed, and any applicable deadlines. Whether an expert will testify at a deposition or trial or will be used solely as a consultant needs to be confirmed in the agreement. The services that are expected to be performed by the expert should be clearly stated. The scope of services provision should be the crux of the retainer, and should be as specific as possible. ![]() Scope of Services Performed: Be Specific! 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. However, it is important to keep in mind the unique nature of each expert-attorney relationship, and draft each retainer agreement accordingly. 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. 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. ![]()
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