What Is an Expert Witness Retainer Agreement?
An expert witness retainer agreement is a contract that a lawyer uses to secure the services of an expert witness. An expert witness uses their specialized knowledge to help the jury understand complex evidence. They’re different from a lay witness, as they did not personally observe the events that happened.
An expert witness retainer agreement outlines the scope of services that the expert witness will provide. It specifies that they will use their knowledge in areas like IP disputes, medical malpractice, or financial fraud to assist the court in a legal case. It also ensures that the lawyer or other party will have them on retainer, meaning they will be available for the case.
This contract guarantees a minimum payment amount for the witness’s services, even if they aren’t used to their full potential. With this agreement in place, the expert witness can save time because they don’t have to invoice for each service provided.
Considerations for an Expert Witness Retainer Agreement
An expert witness should only be compensated for their time and expertise, not for a specific result in the case. Having them sign a contingency fee agreement can be against the law and an ethical violation. If they are trying to win a case one way or another, they may conceal information or frame a case in an advantageous manner.
Also, when you create this contract, you should ensure that the witness does not have any pre-existing relationships with the other parties in the case. This precaution against a conflict of interest helps their testimony remain credible and admissible in court.
What to Include in an Expert Witness Retainer Agreement
An expert witness retainer agreement should be carefully crafted to outline the witness’s services and ensure it’s an ethical contract that upholds the integrity of the judicial process. Legal Templates’s guided form helps you include all the key terms needed for a legally sound agreement. Below, you can review the key elements of an expert witness retainer agreement.
- Scope of work. Clarify what the expert witness will be doing. You may contract them to testify, consult, review legal materials, conduct research, or create reports. For example, if you write a medical expert witness retainer agreement, you may have the witness testify on the long-term prognosis of an injury.
- Compensation structure. Note the retainer fee, which is the flat fee paid upfront to keep the expert witness available for the case. Also, record the hourly or flat fee that the expert witness will need to be paid once you enlist their services.
- Separation of services. Clarify that the expert witness’s services will be separate from those provided by the attorney. Use a legal retainer agreement to outline the services and terms of a lawyer who’s on retainer.
- Confidentiality. Mention the protocols that the expert witness must follow for maintaining confidentiality. They should be clear on how they must handle and store the information they access. Also, define processes for destroying documents and communications.
- Availability of the witness. An expert witness retainer agreement should explain when the witness needs to be available. It may require them to be ready to testify during a trial or available to conduct research in the weeks leading up to a trial.
- Withdrawal/termination. Explain how and when the witness can withdraw from or terminate the contract. For example, if they lose their licensure in their field of expertise, they may have grounds for withdrawal.
Expert Witness Retainer Agreement Sample
View an example of our expert witness retainer agreement template to see how to lock in services from an expert for a legal case. Then, customize your own using our guided form, adding a unique scope of services, retainer amount, and service fees. Download a copy in PDF or Word format for your records.
