An expert witness can be critical to winning a case. But counsel who retain an expert witness, whether to testify or as a consultant, need to ensure that the retainer agreement simultaneously protects their law firm and the client. This can be challenging when:

The relationship with an expert can go awry for many reasons, including:

Counsel can avoid disastrous consequences by including provisions in the retainer letter that anticipate and address these potential issues. For example, counsel should include a billing section that sets out the parties' understanding of how fees are charged and what expenses are included. Also, counsel should make clear their law firm does not indemnify the client and will not cover the expert fees if the client fails to pay the expert. This type of provision may not be part of the standard agreement provided by the expert or expert consulting firm. However, failure to include this language could leave counsel's law firm on the hook for thousands, or even hundreds of thousands of dollars in expert fees.

An undisclosed conflict could lead to disqualification of the expert, or in some instances, the law firm. The typical expert retainer agreement includes a provision stating that the expert must perform a conflicts analysis. However, a more comprehensive provision requiring the expert to verify that the listed conflict scenarios do not exist ensures that he has performed a thorough and complete analysis, making it less likely that the court will disqualify him later.

For more information on how to draft retainer provisions that protect a firm from avoidable problems, see Standard Document, Expert Retainer Agreement. For more information about expert witnesses in general, see Practice Note, Locating and Retaining an Expert.