If arbitration is your preference, but the provision is not in your retention contract, the option may end up off the table.ħ. Talk to your attorney about what’s best for you. For example, JAMS (the nation’s largest arbitration and mediation provider) has offices all over the country pick a location convenient to you.

Identify the parameters, such as where the arbitration will take place. If you and your attorney-client decide binding arbitration is a good choice, then a retention contract is the place to state it. It’s usually less expensive and faster than going to trial, but requires you give up some of the protections of litigation. Arbitration is a conflict-resolution alternative to litigation. Depending on the nature of your expertise, you might want a hold harmless provision. Define and/or limit your liability exposure. You and the attorney can both refer back to the signed contract whenever you hear, or say, “that’s not what you said” or “that’s not what we agreed to.” A contract is “just business.” What you see is what you get (and what you agreed to).ĥ. If your role changes, you and your attorney-client should discuss if a new retention contract is needed to define the new role.Ĥ. He or she is not privy to the same information as a consultant there is no attorney-client privilege. An expert witness is impartial and under ethical constraints. A consultant can help with strategy, review case facts, and make recommendations. A consultant is an agent of the attorney and enjoys attorney-client privilege, but an expert does not. There are legal distinctions and consequences between experts and consultants. Define your role, either as a retained expert or, alternatively, a consultant. I’m a big fan of “Page Y of Z” on every page-it leaves nothing to the imagination about whether a page is missing, or that your page Y exists.ģ. After the niceties (thank you for retaining me in this very interesting case, etc.), followed by a respectful paragraph or two, it’s time for something like “my fee schedule is page Y of this contract and incorporated herein.” Clerical detail: don’t forget to paginate Page Y. Money controversies usually create bad blood with a client, burning bridges, losing referrals and repeat business.Ģ. The goal is to forestall controversies about money that can be a terrible time and financial drain. Establish what you charge, when you are paid, and what happens if you aren’t paid. To best protect your interests, your retention contract should:ġ. This will reflect well on you as an expert. A subtler element is that it shows you are not naïve when it comes to business and legal protections. In fact, attorneys never take a case without a retention agreement with their own client. Some experts are reluctant to require a contract. This is a serious business arrangement and you should treat it as such. This isn’t a “gentlemen’s agreement” where you graciously agree with a handshake as a sign of trust and good sportsmanship. Why beat around the bush? It is a contract, with contractual obligations. While I use the terms Engagement Agreement, Retention Agreement, and Retention Contract interchangeably, I encourage the use of “Contract” from the document’s outset. Oral contracts are legal in California, and many states, but very difficult to prove and enforce. If your fees are ever disputed and you don’t have a retention contract, you may be up a creek without a paddle. In all practicality, the number one reason you need a retention contract is to spell out what you are paid, when you are paid, and what happens if you aren’t paid. Never begin work for an attorney or law firm, or allow yourself to be disclosed as an expert, until you have a signed retention contract in hand. A retention contract protects you and your attorney-client from disagreements that result from misunderstandings, miscommunications, and perceived “misrepresentations.” Like any contract, the purpose of an engagement agreement (aka retention contract) is to define the legal and financial relationship between the expert and attorney, and to formalize the rules of retention in writing.

How Expert Witness Retention Contracts Work & Why You Need One

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