It seems so simple at the start… You want to work with the client and they want to work with you! Everything will work out fine, right?
Most often it does, but this post will take a look at some things you probably want (or don’t want) in consulting agreements, retention letters and other contracts, whether you create the agreement, the law firm does, or if you work through a third party like Round Table Group… Just in case.
These agreements set up the rules for the entire engagement, beyond the basic rate, retainer, and payment information. Attorney H. Bernard Tisdale lays out some of the considerations:
For starters, you are going to need an engagement letter between the attorney and the expert that is going to set forth the terms of the engagement. The bigger role is to start creating that attorney-client communication funnel, for lack of a better term. The engagement letter needs to set out what the attorney’s expectations are. Is the expert going to be utilizing other individuals? They may be with an expert witness company. Many engineers provide investigative services and testimony services. Who is going to be engaged? My preference would be that those individuals be identified in the engagement letter and possibly those individuals sign off on the confidentiality structure that the attorney engaging the expert wants to pursue.
Experts often feel lost at the beginning of these negotiations, particularly as they sometimes happen under deadline pressure. Dr. Russell Froman remembers how lost he felt:
There are many things I wish I had known. Navigating those initial conversations, I tried to be myself but did not know what they wanted. I thought I would be real about my background and knowledge, but I wished I had learned how to prepare an anticipated contract for my services. How much time I anticipated it would take to do the research for the case, and then how much time I expected it would take to write my report. I had no idea. I underestimated drastically in both regards.
If you’re not an expert in contract law, it’s probably best for you to keep any contracts you generate simple and to the point.Dr. W. Richard Laton has, over time, chosen simplicity for his contracts:
Sometimes the lawyers I am working for have their retention letters for experts. I will receive, read it, and make sure there is nothing in there I cannot live with, sign, and send back. Most of them ask about my retention letter, which is simple and that is ‘Hey, are you asking me or retaining me for this case given the case number? I am working for you. Everything goes through you, and you are going to pay me at a certain time frame. Please sign this.’ So, I know I have a legal contract to say, ‘Hey, at least you said you are going to pay me.’ I do not do retainers anymore. Originally, I kind of did and I know people who do retainers all the time. I have never been burned. Maybe there were some slow payments, but I have never been burned and I will keep my fingers crossed. Realistically, they have a problem, and my job is to help them. If I am helping them, I expect to get paid for that help. It is always on 30 days, but chances are it won’t be, but I feel like the contract side of it needs something simple. Also, these contracts come up in depositions, so the simpler it is, the less argument about ‘Oh, you were paid to have this exact in.’ No, I was paid to come up with an opinion. So, I think that also simplifies things as well.
Dennis McAllister makes sure he is covered, particularly if there are scheduling issues that come up later:
Most of it comes out of experience. If the retaining entity has unique needs those terms will be added into the engagement agreement. More often than not it is scheduling for a deposition or testimony, then the day before a settlement occurs, there has been a lot of work and rescheduling. So, I usually add in my engagements some kind of a fee for that kind of a thing. Successful for one side or the other. Then there are also discussions over travel and timing of that sort of thing. The pandemic has given us a new environment with virtual meetings and a lot of travel has been eliminated. I think that works for everybody, saving time, money and disruption to their lives. If there is travel involved, there are some elements I put in regarding the issue.
Robert Sherwood, when working with letter sent to him from attorneys, keeps an eye out for a few key provisions:
There are things I delete when I see them. One is liquidated damages. Another is insurance requirements in terms of adding positive things. I always add that if I do not receive payment or if they do not recover the money to pay me by a specific time, I reserve the right to stop work. Many experts do not do that, but attorneys stop work if they do not get paid. I am no different. I can sell my time and brain but expect to receive payment. [..] Mainly because their insurance might have an unreasonable requirement. For example, maybe they want two or three million in insurance, which is more than I want to carry. I want to be very careful about any expense I am required to incur in addition to what I take. Now most of them do not have insurance provisions, but some do. Many brokers that help experts get business have liquidated damage clauses. I recommend that experts do not sign any new damage clause, which is unique; brokers are adding those things now.
Some provisions may even prove helpful later on as described by Dr. Chuck Easttom:
Dr. Chuck Easttom: Many years ago, I had a case where a client who hired me won a large settlement. It still took me over a year and a half to get paid my final bill because they were a small company running out of money. That is when I started my policy. [If it] is a huge company hiring me, they are going to pay me, it does not matter, but for smaller quick patent work I am getting paid every month as I work. When it comes to trial, I let the attorneys know that your client is going to need to pay me before I step in the courtroom. I explained to him it is because it has gone badly before.
Noah Bolmer: Is this usually outlined in a contract?
Dr. Chuck Easttom: You can put that in your engagement letter with this kind of work. […] Or you can get close to trial. Let them know that, look, we are going to straighten things out financially. Not to mention it is great on the stand when the opposing counsel [asks you about getting paid after. You can say] I got paid before I got here. So, my opinion is not tied to my getting paid. That is a great showstopper to the opposing counsel when they are trying to impeach your testimony.
Whatever agreement you end up with, make sure it is one you are happy with and can keep up your end. If you are working off of an agreement provided by the law firm, make sure you read it carefully. There may be expense criteria you need to abide by. There may be confidentiality clauses that impact how you handle documents and files. Lately we at Round Table Group have begun to see computer security clauses, which you should read very carefully before signing… Not every expert may be able to secure the protected data to the extent some big companies are now requiring.
If you are interested in being considered for expert witness gigs, sign up with Round Table Group. If you would like a group like ours vetting your contracts, consider signing up as an exclusive expert with us. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses, starting with those we already know. Contact us at 202-908-4500 for more information or sign up as an expert.