At Round Table Group we believe there is more to getting retained as an expert witness than competitive expert witness billing rates, discipline expertise, stunning resumes, and sterling references. There is also the critically important expert-client agreement (or retention letter) that defines the scope and expectations of the expert-client relationship. This document describes issues such as deadlines, communication preferences, invoicing processes, and the very important topic of confidentiality.

Experts are a critical asset in winning cases, we know that. But as Gregory P. Joseph points out, the issues of confidentiality and discovery pose a challenging hazard to experts that they must be aware of. However, with just a little foresight and preemptive precautions both experts and clients can avoid this potential pitfall.

Joseph's article,  titled "Engaging Experts" nicely explores the issue of protecting confidential information. And while he is writing for an audience of lawyers, his point on confidentiality and protecting the case, and the parties involved with the case (including experts), is very well taken, and could be adopted by experts as well.

I have suggested in CLE presentations that "thorough and clear pre-retention communication, leading to carefully defined and agreed on terms of cooperation and expected outcomes" are critical to a healthy and successful expert-client relationship. Mr. Joseph's article parallels that idea.

With his permission, I have included two paragraphs he suggests as a model for client-expert retention agreements.

The heart of the form retainer letter consists of the following two paragraphs, which are analyzed in depth below:

    [1] It is understood that (i) you will make a reasonable effort to be available upon reasonable advance notice; (ii) you will keep confidential all information obtained, or analysis developed, in connection with this litigation or any related litigation with respect to which we may seek your advice and counsel; (iii) you will use such confidential information solely in connection with your engagement by us on our client's behalf; (iv) you will preserve any written materials, including e-mails, generated or received by you in connection with this engagement, as such materials are potentially discoverable in litigation; (v) you will not in the future consult for, or otherwise represent, any other person or entity with an interest adverse to our client's interests in or concerning the pending litigation, or the events or occurrences out of which the pending litigation arises; and (vi) you will keep confidential your retention by this firm on behalf of our client, unless and until you are identified in court papers as a testifying expert or we otherwise authorize you to breach this confidentiality.

    [2] It is specifically understood that, if you are later designated a testifying expert, all documents that you create may become discoverable, including drafts and notes prepared prior to the time that your opinion or report is finalized. In our experience, opposing counsel who obtain such documents in discovery often seek to use them in an unfair and misleading way -- for example, to suggest that a change from an earlier draft to a later version has some sinister explanation. This is particularly unfair because you will be learning the case over time, and you may not know all relevant information prior to the time that you finalize your opinion and report. In addition, the preparation of draft opinions and reports is expensive and should not be undertaken prematurely. Therefore, you agree that: (i) you will not prepare any draft opinion or report without our consent (regardless of whether the draft is for internal purposes or to share with others); (ii) you will not share any draft opinion or report, or any notes, with any other person without our consent; (iii) every draft opinion or report will bear the following legend: ‛THIS IS A PRELIMINARY DRAFT. IT HAS BEEN PREPARED BASED ON PRELIMINARY INFORMATION AND ON ASSUMPTIONS. NO ONE MAY RELY ON THIS DRAFT. IT IS SUBJECT TO CHANGE AS ADDITIONAL INFORMATION BECOMES AVAILABLE OR IS CLARIFIED"; and (iv) all notebooks or individual pages of notes will bear the following legend: ‛THESE NOTES ARE INCOMPLETE AND HAVE BEEN PREPARED FOR PERSONAL USE ONLY. NO ONE MAY RELY ON THEM FOR ANY PURPOSE. ALL VIEWS ARE SUBJECT TO CHANGE AS ADDITIONAL INFORMATION BECOMES AVAILABLE OR IS CLARIFIED"

At Round Table Group, we work hard to assist our experts in every phase of getting retained, and ensuring a smooth, positive, and profitable experience.

If you have any questions about retention agreements, or any matter, please contact one of our expert services coordinators.

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