Upon the retention of an expert witness, both the legal team and expert cement the terms of their agreement in the form of a contract. While this is common knowledge and these contracts are standard, there are many perpetuated contract myths. If these myths are not properly debunked, they might lead to disputes between the attorney and expert witnesses, and important legal work gets unnecessarily disrupted.
In order to help avoid these misunderstandings, and to facilitate a smoother overall expert witness retention process, we’d like to take some time to quickly bust three common contract myths within the industry.
Despite similarities in various expert witness contracts, they each have nuance and will differ slightly. This is important to note, as it illustrates that all contracts should be read, and all specifics understood. While many attorneys would consider these contracts “boiler-plate”, issues still arise after they are signed and returned.
Most commonly, these issues are related to payment terms. As an example, an expert came to us requesting an update on their payment after retention officially began. After speaking with the law firm, we were informed that the firm pays every 90 days. This surprised both us and the expert, as the contract specified a 30-day payment term.
Obviously, these issues can be resolved. However, they tend to cause a temporary hiccup that could be avoided by adjusting the contract prior to signing. When these issues are addressed early in the process, experts are more receptive to small adjustments and compromises that satisfy both parties.
Many legal teams understand the value of promptly finalizing an expert’s retention. Despite this, some attorneys pause the process as soon as the contracts are received but before signing and returning them for the counter signature. The legal team and expert may reach a consensus, only to have the attorney sit on the contract for several weeks before officially finalizing it.
While the attorney likely knows that the contracts will be signed soon and retainers paid, this puts experts in a tough position. In most instances, experts set aside time to focus on specific expert witness assignments. If this time is scheduled and contracts aren’t finalized, or retainers aren’t paid, they begin to have doubts about where things stand and whether they will be retained.
Great experts require formal retention before anything is set in stone. Occasionally delayed contracts send a signal to the expert that their retention is not confirmed, which results in them taking other work opportunities. Sometimes the best expert witness for a matter may become lost to other assignments because of contract delays.
It is somewhat common for attorneys to split the billing of an expert witness between multiple clients involved in the litigation. While this situation might be necessary, it can result in some challenges and frustration.
Often, these billing arrangements are handled smoothly and with professionalism. Occasionally, as multiple parties become involved with this process, things fall through the cracks. When issues do arise, they are typically in the form of improper calculations or variations in payment processing times. As an example, if all but one party processes their portion of the expert payment on time, while the remaining party pays the expert late, the expert is put in a position where they may need to halt their work until the full payment is received.
If split billing is a necessity, legal teams should operate from the position of keeping their experts happy and productive. While issues might arise, a contingency plan should exist to ensure that all parties are accountable when it comes to paying the expert their full amount on time.
After 26 years of successfully pairing legal teams with great expert witnesses, we’ve seen it all. Therefore, we understand the importance of a smooth retention process from start to finish, which can be impacted by the contract stage. When legal teams understand these three common expert witness contract myths, retentions will start on the right foot.