An expert engagement letter lays out the scope of the relationship between the attorney and an engaged expert witness. As with other types of agreements, an expert engagement letter places both parties’ responsibilities and expectations in writing, helping to reduce the risk of disputes in the future, and to focus your expert’s attention on the work you have retained them to do.
While the details of each expert engagement letter are as unique as your case, certain elements are common to nearly all engagement letters.
Start With Basic Identifying Information
Begin the letter by identifying by name the expert, the attorney, and the matter for which the expert has been retained. You may also wish to include the date on which the expert’s services are expected to begin.
State the Expert’s Role
In this section, state the expert’s role in your case. Specifically, note whether or not the expert will be expected to testify.
You may also wish to note whether or not the expert can expect protection based on this status. For instance, Federal Rule of Civil Procedure 26(b)(4)(D)(iii) does not allow facts or opinions of a non-testifying witness to be discovered except upon a showing of exceptional circumstances. Knowing what protections exist can help your expert determine how best to approach their work and their resulting report.
Outline the Services the Expert Will Perform
Once you’ve established whether or not the expert will testify, outline the services the expert will perform. Since these vary as widely as experts and cases do, it is beneficial to tailor this section to each particular expert relationship.
Include a timeframe for work to be performed in the outline, along with any necessary deadlines for reports or other deliverables, such as trial exhibits.
Break Down the Expert’s Compensation
Every engagement letter benefits from a section that offers a clear explanation of how much the expert will be paid, how fees and expenses are defined, and when payment will be delivered. Factors to consider in this section include:
- How much the expert will be paid. Experts’ fees can vary based on their experience and training. The work required and the time frame will also affect payment.
- Out of court versus in court. Some experts charge different rates for testimony than they do for tasks like testing materials or reviewing documents. Include any differences in rates for different tasks in the agreement.
- How payment is calculated. If the expert charges an hourly rate, include it in the engagement letter. If multiple rates are used (e.g. for out of court versus in court work), list each rate. If a flat rate is chosen, include it and specify what that rate covers, as well as how the expert will be compensated for work that falls outside that flat rate.
Talk About Confidentiality
Confidentiality is a daily consideration for attorneys, but expert witnesses often benefit from a clear explanation of how confidentiality expectations and rules apply to their work. To protect the privileged materials and attorney work product the expert may engage with during the course of the relationship, include a brief section stating that the information is confidential. Remind the expert that once the relationship ends, the expert must return or destroy any confidential materials.
Finally, clarify that communications between the expert and the attorney, the attorney’s client, and the attorney’s staff are confidential and that all parties involved are expected to treat them as such.
It can be valuable to remind expert witnesses that nearly all their written communications are discoverable under Rule 26 of the Federal Rules of Civil Procedure and Rule 16 of the Federal Rules of Criminal Procedure. Many state courts consider these materials to be discoverable as well. It can beneficial to consider adding instructions on how the expert should communicate (e.g. via phone versus email) in order to avoid inadvertently producing discoverable materials.
State When the Relationship Ends
Include a termination clause specifying when the relationship will end. Instead of stating a specific date or duration, consider attaching termination to a particular event, such as a settlement or verdict.
You should also account for any reasons that would justify termination of the agreement by either the attorney or the expert. Common reasons include the expert’s failure to perform the necessary services or the attorney’s failure to meet the agreed-upon payment schedule.