If you are thinking about becoming an expert witness, it’s essential to familiarize yourself with the ins and outs of expert witness retainer agreements. Here’s everything you need to know about the benefits of retainer agreements, best practices for outlining terms, and how to begin drafting your contract.
Updated on October 12, 2022
A retainer agreement is a contract for expert witness services that establishes billing on a retainer basis. Its purpose is to make payment administration seamless for both the lawyer and the expert witness. In an expert witness retainer agreements, the parties (you, the expert, and your attorney client) delineate work expectations, deliverables, pricing, and timing within the agreement. Retainer agreements also establish the length of the contract, known as the “term.” What makes a retainer different from other contracts is that the hiring lawyer or organization agrees to pay a certain sum upfront to cover initial fees and the expert deducts from the lump sum as services are rendered. The upfront payment is the “retainer.”
Retainer agreements are all about clarity. They work in favor of both parties, and they stand the test of time. A thorough retainer agreement is arguably the foundation of a successful working relationship between an expert and an attorney. In cases that go on for months or years, retainer agreements help parties avoid confusion as to work product expectations. Retainer agreements also give parties the flexibility to deliver compensation in phases as deliverables are completed. The retainer can be replenished during the course of the engagement.
Retainer agreements benefit experts by saving them time and work they would otherwise have to invest invoicing. Experts also avoid waiting for a payment each time a portion of the work is completed.
The retainer approach also saves administrative work on the law firm side. With a retainer agreement, there’s no need to write monthly checks for ongoing expert services. This is particularly helpful for lawyers at small firms and solo practitioners who may not have accounts payable resources.
As an expert, there are a number of key sections you’ll want to include in your next retainer agreement. First, discuss with your attorney client upfront whether your services include consulting, report writing, depositions, or trial appearances. Often times, this scope of deliverables, so to speak, will inform the expert work products that need to be rendered. From there, break your work products down into “Service Type” and “Stages”. These should correspond with the client’s case cadence and timeline. Clearly outline this information in the contract. To ensure the agreement is airtight and fully protects your interests, it's crucial to have an attorney draft the agreement or thoroughly review it before finalizing. Legal counsel can help identify potential risks and ensure that the terms adequately cover all contingencies.
Generally, experts bill at an hourly rate commensurate with their experience and credentials. Communicate your rates to your attorney client, and provide an estimate of your fees for the consulting phase. This amount becomes the retainer. Draw down on this for your payments as deliverables are completed in this phase.
For the first stage—which is typically consulting—specify the issues, subject area, deliverables, and rates you’ve agreed to for this phase of the case. Your attorney client may ask you to review records, create chronologies, and advise on case issues. They may also ask you to participate in conference calls, meetings, independent research, or fact verification. Stipulate how long you anticipate each exercise will take, and craft your retainer agreement accordingly.
It’s important to settle on a clear agreement with your attorney client regarding the timing expectations for each service. Legal proceedings are heavy on statutory and case deadlines. As a result, lawyers face a lot of pressure. Setting target and hard due dates for your deliverables will avoid tension downstream.
If your engagement involves deposition and testimony services, you’ll want a section that specifically addresses these aspects. Spell out the required preparation time and your time spent in the deposition or testifying in court, including any cross examination by opposing counsel. Remember to include any conference calls or preparatory meetings.
Under Rule 26 of the Federal Rules of Civil Procedure , if your expert services are engaged for a federal case (and in some states), as the expert witness, you must provide opposing counsel with a written report containing “all opinions the witness will express and the basis and reasons for them.” Don’t forget to include this requirement and the report deliverable in your fee estimates for the retainer. Be sure to confirm a report due date with your attorney client.
Again, an estimate of fees and costs for deposition and testimony phase(s) will help you and your attorney client determine the retainer amounts.
If serving as an expert witness requires you to travel at any point, make sure to include relevant provisions in the contract. Specify all travel travel time, modes of transportation, lodging, food expenses, and related costs in this section. Some attorneys prefer to enumerate ancillary fees in a separate section. Discuss the contract’s organization with your attorney client.
Don’t forget to include incidental expenses—mailing, printing, scanning, and mileage—in your cost estimates for each phase.
Pay attention to the boilerplate section of a contract called “Term and Termination.” Termination clauses specify situations in which the parties might terminate the agreement before the term ends. These clauses typically specify “for cause” reasons for termination. These can include the expert failing to complete a report on time. Another reason could be the attorney’s failure to replenish the retainer or pay the expert for services rendered. Look out for any “for cause” reasons slanted in the client’s interests.
Termination clauses seek to make the dissolution of an expert witness retainer agreement as easy as possible. In the rare or unexpected case your contract is terminated, make sure you are compensated for any work completed before you received the termination notice.
A retainer agreement, like all contracts, should detail when the engagement starts and ends. It seems obvious, but be sure to check that the end dates in the term clause match the due date of your last deliverable or service.
When in doubt, more information is always better. The antidote for misunderstandings, missed deadlines, and unhappy clients is upfront communication.
About the author
Carolyn Casey, J.D.
Carolyn Casey is a seasoned professional with extensive experience in legal tech, e-discovery, and legal content creation. As Principal of WritMarketing, she combines her decade of Big Law experience with two decades in software leadership to provide strategic consulting in product strategy, content, and messaging for legal tech clients. Previously, Carolyn served as Legal Content Writer for Expert Institute, Sr. Director of Industry Relations at AccessData, and Director of Product Marketing at Zapproved, focusing on industry trends in forensic investigations, compliance, privacy, and e-discovery. Her career also includes roles at Iron Mountain as Head of Legal Product Management and Sr. Product Marketing Manager, where she led product and marketing strategies for legal services, and at Fios Inc as Sr. Marketing Manager, specializing in eDiscovery solutions.
Her early legal expertise was honed at Brobeck, Phleger & Harrison, where she developed legal strategies for mergers, acquisitions, and international finance matters. Carolyn's education includes a J.D. from American University Washington College of Law, where she was a Senior Editor for the International Law Journal and participated in a pioneering China Summer Law Program. She also holds an AB in Political Science with a minor in art history from Stanford University. Her diverse skill set encompasses research, creative writing, copy editing, and a deep understanding of legal product marketing and international legal trends.
