In this episode . . .

Contracts decide more than pay. They decide credibility, leverage, and whether your independence will stand up under scrutiny. We sit down with attorney Meredith (“Merry”) Campbell, Chair of Employment and Labor Law and Corporate Investigations at Shulman Rogers, to unpack how expert witnesses can safely operate as independent contractors without triggering misclassification, payment delays, or discovery landmines. From the default presumption of W‑2 employment to the maze of federal and state tests, Merry explains why “1099” is a claim you have to earn and document.

We walk through the realities that make an independent contractor model viable for experts: freedom to accept or reject engagements, control over rates and scope, and the ability to serve multiple clients. Then we translate those realities into contract language that holds up. You’ll hear concrete guidance on defining compensable work, setting invoicing cadence, structuring milestones for termination, and avoiding any clause that ties payment to case outcomes. Merry Campbell shares pragmatic strategies for getting paid when intermediaries sit between you and the end client, how to request periodic status updates without creating forgettable obligations, and the exact red flags that opposing counsel will use to attack your neutrality.

If you want your practice to run like a business, and your contract to prove it, this conversation will sharpen your approach to classification, negotiation, and payment.

Note:  Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Meredith “Merry” Campbell, Attorney at Shulman Rogers 

Noah Bolmer: I’m your host, Noah Bolmer. Today’s guest, attorney Merry Campbell, is the employment and labor law and corporate investigations chair at Shulman Rogers. She is frequently quoted and well-published by highly respected industry and news outlets and has been honored as a top attorney by Bethesda Magazine. Ms. Campbell holds a JD from Harvard. Ms. Campbell, thank you for joining me today on Engaging Experts.

Merry Campbell: Glad to be here. Thanks for inviting me.

Noah Bolmer: For today’s show, I’d like to focus on independent contractors, an area in which you have considerable expertise. Let’s talk about independent contractor basics. What does it mean legally to be classified as an independent contractor versus an employee?

Merry Campbell: That’s a broad question. The best way for most employers to think about it is when you have a worker coming to provide services for you, the default understanding from the government’s perspective and [many] plaintiff lawyers’ perspective is that every worker is a W-2 employee and should be compensated as such. W-2 employees often have particular protection. The anti-discrimination laws come to mind. Other protections that are legally based also have certain benefits. Those can be statutory, for example, things like unemployment, and workers’ compensation. They can also be elective. Things like some of your insurance benefits, and healthcare falls into quasi-statutory and quasi-choose your own adventure. Sick leave also [can be] sometimes statutory. The things like vacation and all the other goodies you provide to your regular W-2 employees.

If someone comes to you and wants to be a contractor, a 1099, in the typical situation, you have to overcome the presumption. Most employers understand that their workers have to be W-2 employees. You have to fit certain legal criteria in order to qualify as a 1099 contractor. There are certainly some advantages and some disadvantages to being a 1099 contractor. You have a little more freedom and control over your work. You can negotiate who owns the work product in some circumstances.

Similarly, there are some tax differences. That’s not always an advantage. It’s a tax difference. A different treatment in terms of your potential, equipment, and travel. Things like that might be taxed differently because you are not entitled to some of these benefits if you’re working as a 1099. Sometimes the compensation rate is higher to reflect the value of the service less these extra goodies that you might get if you were in fact a W-2 employee.

Noah Bolmer: Does a lot of this depend on venue? What state you live in, or is more of this at the federal level? How does this affect expert witnesses who live in a variety of different locations across this country?

Merry Campbell: Great question. These are the questions that keep me employed as a lawyer. There’s no straight answer. They are what my husband calls “Dimler”, which is a series of laws at both the federal and state level that are similar but different. Even at the federal level, there are different tests depending on which agency or department is looking at the 1099 status, the independent contractor status. The Department of Labor has a slightly different test than the IRS. There are scenarios where you can qualify as an independent contractor under one test, but not the other test, For one agency, not the other agency. Then again, there are different tests at the state and local level because the default understanding is that you are a W-2 employee. Where this will often come up is when someone files for unemployment, following the end of the working relationship. Remember, if you are a 1099 contractor, you’re not entitled to unemployment, but that also means that your employer or the entity you’ve been contracting with has not been paying your unemployment taxes, has not been making the employer contributions. In that scenario, it is not uncommon for the state level unemployment agency to want to take a closer look at that relationship, determine whether or not you were properly classified as a 1099 or should have been a W-2 and those required contributions should have been made.

Noah Bolmer: Let’s talk about the intersection of independent contractors and expert witnesses. To what extent does this affect experts? Are a lot of experts themselves independent contractors?

Merry Campbell: I’ve seen it- I work with several organizations that work with independent contractors- excuse me, that work with expert witnesses. I’ve seen them characterized under both frameworks under- in some circumstances under W-2 and in some circumstances under 1099. In some industries, when clients come to me, I strongly encourage them to move away from the 1099 model because it’s not one that fits the reality. I would say expert witnesses are one of those rare breeds where, in fact, we can make 1099 relationships work. That said, it  depends on the nature of the relationship. If the organization views itself as a bit more of a matchmaker than an employer, they are the go-between between the law firms or the various organizations that might need an expert witness, and do the cultivation of various resumes. [Do] a review to make sure that the expert is who they say they are, and has the background that they say they have, et cetera, et cetera.

Noah Bolmer: Like an expert witness referral agency, for instance.

Merry Campbell: Correct. If the relationship- if the work- the entity that for whom you’re providing the services. I’m trying to avoid saying the employer. If the entity for whom you’re providing the services is more like that agency or matchmaker role, then that is one where the 1099 relationship can be justified. One of the keys there is that the contractor is supposed to be able to control the economics of the situation. The relationship has to be one where the contractor has an opportunity to, for example, and these are all just examples, there’s no one right or wrong answer. They might have the opportunity to accept or reject work. To set their own rate, to do it on a project basis instead of an hourly basis. All of these things are factors that support the notion that they’re an independent contractor. Similarly, we’d like to see that they have the opportunity to provide those services to multiple different agencies, not just to one. Any of these things- we can just- no one of these is dispositive. So, if in fact, we are not comfortable with an answer on one of these factors, but the rest of them all look good for 1099 status, then we might get some comfort there. These are all various things that we can look at to support and justify the 1099 relationship.

Noah Bolmer: I’d like to talk about the agreement between the parties. Go through some of the specific terms, conditions, and negotiating points that independent contractors go through. I’d like to start with which party drafts the contract in the first place. Should the expert prefer their own firm’s agreement as a starting point? Should they go with whatever the attorney gives them? What do you recommend?

Merry Campbell: There’s an old lawyer saying that “to the drafter goes the spoils.” [Many] times, the party with more control would prefer to draft a document. That’s usually going to be the entity for whom you’re providing the services, but not always. If you have particular causes, particular approaches that are important to you, it’s important that you take a look at those. Maybe hire your own lawyer to come up with language that passes legal scrutiny, and at minimum, be in a position to share those select provisions with the entity you’re working with, if not coming up with an entire agreement of your own drafting.

Noah Bolmer: What are some of those key provisions? What are some of the most important points that experts should be familiar with and thoroughly read before signing anything?

Merry Campbell: Like everyone who provides services, you want to be paid. When do you have to invoice? How often are you being paid? What is considered product for which you will be paid? Are you paid by the hour? Are you paid by the work product? As an expert witness, you want to be careful that the language does not say that you’re paid for your opinion. A good lawyer will work hard to destroy your credibility if that’s how you’re being paid. But you certainly can be paid for your time. You can be paid for the report itself, for the project but those are things you want to think through. Sometimes either the entity you’re working for or the law firm or the end user might have some thoughts on this as well. These are all things to pay attention to.

You want to think about how the contract can be terminated. whether you get partial payment, in what amounts, and how is that calculated? Beyond that, you want to think about things like indemnification. You want to be clear about what expenses are reimbursed and if travel is required, things like that can be fairly costly. Often if I’m working with the entity who- for whom you’re providing services, I’m advising them not to pay for your travel because that looks more like a W-2 employee, but maybe you can negotiate a higher rate to encompass those travel rates so you get- you’re fairly compensated for the work you’re providing without it falling into the trap of looking more like a W-2 relationship.

Noah Bolmer: You mentioned termination. How should termination clauses be structured?

Merry Campbell: One, they want to make sure that they can get out of the relationship. That they can end- that it’s a mutual termination. When push comes to shove, you’re usually able to get out of that relationship, but you also want to be fairly compensated for the work that you’ve provided. You want to think about prorated compensation. Think about if you’re doing this on a project basis [and the] milestones for which you’ll be compensated. If it’s hourly, you’ll be paid a prorated amount. We talked about timing of payments and so certainly at termination, if they owe you a lot of money, that’s a harder situation than if you’ve negotiated that payments are going to be made on a monthly basis. Those are all things that go- there are elements, various levers you can push that go hand-in-hand and make sure that you don’t find yourself in a pickle if it doesn’t work out.

Noah Bolmer: One of the more frequent complaints that I’ve heard from expert witnesses is that occasionally can be difficult to be- to get paid, and you’ve mentioned this. What are some things that expert witnesses can do in these contracts to ensure that they are protected in situations where either the attorney is waiting for payment from the end client, or they just haven’t paid in a timely manner? What are the things that experts can do to add a bulwark against them?

Merry Campbell: That’s an interesting question, and like all contract negotiations, it comes down to what leverage you have. In some circumstances, you might be able to negotiate for some type of indemnification or payment obligation from the entity for whom you’re providing the services. If the end user is a law firm, maybe your contract is with the expert entity and that they’re required to pay you regardless of whether or not the law firm pays them. That is something you can negotiate for. You can certainly imagine that the entity is looking for different terms. No one wants to be left holding the bag. Those are all things to at least be aware of as you’re looking at these payment terms so that you understand what your risk is here in terms of whether or not you’ll be paid.

Noah Bolmer: Sometimes experts, and I would say even on balance, the majority of the time, experts aren’t aware when a case either goes to settlement or concludes in some fashion, they do their piece and then they move on. Should they be putting something in the contract so that they are informed or have some idea of the disposition of the case after their part is over?

Merry Campbell: It’s an interesting question. I’ve not seen that, which doesn’t mean that it shouldn’t or is not in many of these contracts. That’s an interesting idea. I do worry that it would be one of the provisions in there, but maybe not always followed. Not for a nefarious reason. More because people forget. If that is a concern for you, you want to make sure you’re not drifting out there with no resolution, maybe instead of that one obligation, think about an ongoing- you’re required to check in with me on a monthly or quarterly basis to let me know the status of the case. That way there’s something on the books. A reminder for everybody that we should be checking in.

Noah Bolmer: In a contract between an expert witness and an attorney, there’s an inherent imbalance in the ability to enforce provisions because the expert is an expert in whatever their field is but at the end of the day, the other party is an actual attorney. The best defense that experts have might be to know when to say no to a contract in the first place. There are common pitfalls or red flags that experts should be looking for in these contracts before signing in the first place.

Merry Campbell: As I think that through, anything that suggests that you’re only paid if they’re- if the attorney is successful in trial the attorney might be working on a contingency basis, but you should not be paid for the success of your opinion. Anything that triggers compensation to the end of the litigation where with a successful resolution would be problematic. You want to be paid for the product, work product you’ve provided or the time you’ve spent so you don’t want to be in a position where you’re waiting, where there’s some type of delay in your compensation.

Noah Bolmer: Often during depositions, these contract provisions are used to impeach expert witnesses. Are these contracts themselves discoverable?

Merry Campbell: It can be. I’m a recovering litigator, so I have not had to duke out one of these issues in a while. I know in disputes I’ve handled in my past we do look for any language that makes it sound like compensation is somehow triggered based on the opinion that you ultimately give. You need to make it clear that you’re neutral. To my mind, this is more the obligation of the lawyer who ultimately wants to use you as an expert to make sure they’re not requiring anything of you in their contracts that could be used to impeach your credibility rather than an obligation of the expert witness. It’s always good for you to be sensitive to those potential concerns.

Noah Bolmer: When we began our discussion, we talked a bit, or you mentioned a bit, about the tax implications of being an independent contractor. In fact, that might be why it’s some- in many professions, an individual might be better off as a typical employee rather than a 1099. What are some of those tax and insurance considerations that experts should be thinking about before deciding whether or not they should be independent?

Merry Campbell: I’ll start with the tax consequences. 1099 compensation is taxed differently than W-2 compensation. We’ve already talked about the deductions that aren’t made, but you tend to get more money upfront. I am not a tax expert. This is- I’m not as familiar with the weeds of it, but in my experience in talking to people on the whole, I get the impression that ultimately you still end up paying tax. That money is still taxable income and you still pay taxes on it, but [at] a different rate. You also have the opportunity, as we mentioned, to write off some of your expenses. My biggest recommendation for all of this is if you are pursuing independent contractor status, please work with a reputable accountant because these are the things that are subject to challenge and you want to get it right.

Noah Bolmer: And insurance considerations.

Merry Campbell: Oh sorry. In terms of insurance considerations, often the contract itself will ask you to confirm your understanding that you’re not getting health insurance. You’re not getting any of the standard W-2 benefits that regular employees of the organization are entitled to receive. You should be on the lookout for that. Then there might an expectation that you either indemnify either the entity or the ultimate client of the services, or that you, at minimum, show that you’re carrying sufficient levels of insurance. These requirements might vary from contract to contract, but a good negotiator will be looking for some type of proof that, if the proverbial stuff hits the fan, that you are carrying sufficient general insurance to cover a potential problem. You do want to look at it, and you do want to look at if they’re asking you to indemnify them for anything, I would be weary and want to get a better understanding of what that means. What that indemnification means. Sometimes you’re looking to have them indemnify you. Sometimes they’re looking to have you indemnify them. These are all things you have to pay close attention to.

Noah Bolmer: In terms of negotiating, is there any inherent difference in negotiating as an independent contractor? Are you at any inherent disadvantage or advantage, or does it depend more on what your specific expertise is that you’re being hired for?

Merry Campbell: That’s a great question. My response would be advantage and disadvantage is all in how you perceive the world. One of the true values of being a contractor is you have a whole lot of freedom. You get to take on the projects you want to take on. You get to work with the people you want to work with. You get to take on the subject matter you want to take on. You get to work at the rates you want to work at so you have a lot of freedom. Most of your freedom is in terms of rejecting. Unless you are the ultimate superstar in your field, you might not- there are often more than one expert who could protect and potentially provide that services. So, if what you’re looking for is an advantage in those negotiations, it’s more in terms of what you can walk away from. But, if you’ve got that particular niche, that expertise, and you know that you are the perfect person to handle this particular concern, use your knowledge.

Noah Bolmer: Do you have any stories or cases that you can talk about, obviously, without necessarily mentioning specifics that illustrate any of these points about experts working in an independent contractor setting?

Merry Campbell: That’s always the hardest question because of those privileges that we’ve been talking about. What I would say is not so much from a legal perspective, but when you are a contractor providing these experts situations, you get the most interesting, the most exciting, the most cocktail story- cocktail party story stuff. It does keep your work more interesting, especially when you are in a situation where you can be a little more elective or selective with the cases that you’re pursuing. You also get to be- work with people who challenge- the right lawyers know how to use an expert to become- you remain independent. You remain neutral, but you become a member of the team in terms of making sure that the work you’re provided is used in the best light possible.

Noah Bolmer: Do you use expert witnesses in your own practice?

Merry Campbell: As I mentioned, I’m a recovering litigator, so I have in the past and I’ve cross-examined expert witnesses as well. Now at my stage, I do more proactive counseling rather than litigating with expert witnesses.

Noah Bolmer: Nevertheless, I’d like to ask you how expert witnesses get started on the right foot in general. What makes for a good expert attorney relationship?

Merry Campbell: That’s interesting. I thought you were- when you started this question, I thought I was going down a slightly different path. I’m going to answer my question and then yours. What I thought you were asking is how do you find your way to the best, most interesting cases and that is in working with the best organizations to match you with those lawyers. Be selective in the expert witness organizations that you’re working with. Then in terms of working well with the attorneys, I would remind you, as much as you are on a team, it might feel like a team, you are a neutral, an expert and the value you bring is that neutrality. You want to make sure sometimes- [we] lawyers forget, are too colloquial, or too familiar with the experts. I’ve always respected when there’s some pushback there. Your role- you are not a member of the team. You are a neutral who’s coming in to help support, and provide your best understanding of the facts that are presented to you. You are much more valuable when it is clear that is the role you’re serving and that your opinions and perspectives can’t be bought. That you provide the same answer no matter who is employing you.

Noah Bolmer: I have one more question that I ask all of our guests. Do you have any preparation routines that you use to get ready for a big day whether it’s a trial, a deposition, or any kind of big action, not just the typical preparation. I like to read my notes and whatnot, but I’ve had guests come in that like to do yoga, or listen to heavy metal, drink coffee, or abstain from alcohol. Do you have any specific thing that gets you in the right mindset, gets you ready to go?

Merry Campbell: To tackle the day. I am a full-time attorney with two kids trying to make my way through the world. My best preparation is a good night’s sleep and it’s about confidence. If you start your day feeling like you’ve done everything you can to prepare for the day, then I’m going to have a good day. If I feel like I’m chasing one meeting to the next or one conversation to the next, I feel like that’s when I feel the most panicked and feel like I’m not prepared for what’s coming.

Noah Bolmer: I love it. Before we wrap up, do you have any final advice for expert witnesses or attorneys working with experts for that matter?

Merry Campbell: My advice is as- this conversation is important and a good reminder that you do need a contract in these situations. The number of times I’ve seen people proceed on handshake deals, emails back and forth, or whatever document is provided to them. They just sign it and move on. These are contracts and they do have ramifications. When all goes smoothly, you don’t have to think about it, but there are [many] lawyers who have professions because things never go smoothly. You should be thoughtful about the relationships you’re entering into.

Noah Bolmer: Sage advice. Ms. Campbell, thank you for joining me today.

Merry Campbell: Thank you. I appreciate it.

Noah Bolmer: And thank you as always to our listeners for joining us for another edition of Engaging Experts. Cheers.

Meredith “Merry” Campbell, Chair of the Shulman Rogers Employment and Labor Practice Group

Meredith (“Merry”) Campbell is the employment and labor law, and corporate investigations chair at Shulman-Rogers. She is frequently quoted and well-published by highly respected industry and news outlets, and has been honored as a top attorney by Bethesda Magazine. Ms. Campbell holds a JD from Harvard