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How Expert Witness Retention Contracts Work & Why You Need One
How Expert Witness Retention Contracts Work & Why You Need One
Like any contract, the purpose of an engagement agreement (aka retention contract) is to define the legal and financial relationship between the expert and attorney, and to formalize the rules of retention in writing. A retention contract protects you and your attorney-client from disagreements that result from misunderstandings, miscommunications, and perceived misrepresentations.
Never begin work for an attorney or law firm, or allow yourself to be disclosed as an expert, until you have a signed retention contract in hand.
In all practicality, the number one reason you need a retention contract is to spell out what you are paid, when you are paid, and what happens if you arent paid. If your fees are ever disputed and you dont have a retention contract, you may be up a creek without a paddle. Oral contracts are legal in California, and many states, but very difficult to prove and enforce.
While I use the terms Engagement Agreement, Retention Agreement, and Retention Contract interchangeably, I encourage the use of Contract from the documents outset. Why beat around the bush? It is a contract, with contractual obligations. This isnt a gentlemens agreement where you graciously agree with a handshake as a sign of trust and good sportsmanship. This is a serious business arrangement and you should treat it as such.
Some experts are reluctant to require a contract. They fear pushback from an attorney. In fact, attorneys never take a case without a retention agreement with their own client. They wont be surprised that you do too. A subtler element is that it shows you are not naïve when it comes to business and legal protections. This will reflect well on you as an expert.
To best protect your interests, your retention contract should:
1. Establish what you charge, when you are paid, and what happens if you arent paid. The goal is to forestall controversies about money that can be a terrible time and financial drain. Money controversies usually create bad blood with a client, burning bridges, losing referrals and repeat business.
2. Contain your fee schedule. After the niceties (thank you for retaining me in this very interesting case, etc.), followed by a respectful paragraph or two, its time for something like my fee schedule is page Y of this contract and incorporated herein. Clerical detail: dont forget to paginate Page Y. Im a big fan of Page Y of Z on every pageit leaves nothing to the imagination about whether a page is missing, or that your page Y exists.
3. Define your role, either as a retained expert or, alternatively, a consultant. There are legal distinctions and consequences between experts and consultants. A consultant is an agent of the attorney and enjoys attorney-client privilege, but an expert does not. See Zurich American Ins. Co. v. Superior Ct. (2007) 155 Cal.App.4th 1485, 1498. A consultant can help with strategy, review case facts, and make recommendations. An expert witness is impartial and under ethical constraints. He or she is not privy to the same information as a consultant; there is no attorney-client privilege. If your role changes, you and your attorney-client should discuss if a new retention contract is needed to define the new role.
4. Diminish confusion. You and the attorney can both refer back to the signed contract whenever you hear, or say, thats not what you said or thats not what we agreed to. A contract is just business. What you see is what you get (and what you agreed to).
5. Define and/or limit your liability exposure. Depending on the nature of your expertise, you might want a hold harmless provision. Seek the advice of counsel. Its important and consequential.
6. Consider binding arbitration. Arbitration is a conflict-resolution alternative to litigation. Its usually less expensive and faster than going to trial, but requires you give up some of the protections of litigation. If you and your attorney-client decide binding arbitration is a good choice, then a retention contract is the place to state it. Identify the parameters, such as where the arbitration will take place. For example, JAMS (the nations largest arbitration and mediation provider) has offices all over the country; pick a location convenient to you. Arbitration is not for everyone. Talk to your attorney about whats best for you. If arbitration is your preference, but the provision is not in your retention contract, the option may end up off the table.
7. Paying the prevailing partys attorneys fees and costs if you lose. If you go to court to enforce your contract or to settle some other controversy with your client, the prevailing party might be entitled to reimbursement for his or her attorneys fees and costs from the loser. If you dont like those odds, consider a provision that each party will pay his or her own attorneys fees and costs, regardless of the outcome.
8. Clarify and state your out. By reserving the right to withdraw your services from the case (under circumstances you have defined), you can reasonably pull out of the case if those terms are breached. For example, you havent been paid within the indicated deadline (e.g. 30 days after invoicing); youre scheduled to testify and theres a balance due; records arent supplied in a timely manner to do your job effectively; the attorneys office isnt responsive to your inquiries and requests about anything; or the number of cancellations are excessive. You get the idea.
9. Let the contract speak for itself. If a client challenges you about something that was, in fact, already covered in the contract, refer them back to it. You are now taken out of a potentially hostile conversation in which you might, unwittingly, escalate bad feelings, renegotiate the terms of the contract, or misstate your policies.
Be thorough and provide for whats important to you. Dont worry about whether the document might scare away your client with its length and tone. Remember, its just business.
The bottom line:
ü Get a retention contract before you begin any work. Both you and your attorney-client will sign.
ü Include a detailed fee schedule.
ü Once fully executed, send a copy to the attorney and keep the original.
ü If questions or controversies arise, let the contract speak for itself.
ü Invoice clients in keeping with the terms of your contract and fee schedule.
Beryl Vaughan has worked in law and forensic psychiatry in practice development and case management. She is a marketing and small business consultant to expert witnesses and attorneys. She works primarily with forensic psychiatrists and psychologists. It is her experience that everyone wants to be paid for the work they do and hopes this article is helpful. More about her can be found at ForensicExpertPro.com and she can be reached directly at firstname.lastname@example.org.