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Expert Witness Questions: To Use a Retainer or Not to Use a Retainer

Should you use a retainer

Expert Witness Questions: To Use a Retainer or Not to Use a Retainer

The modern litigation process is extremely reliant on expert witnesses for a wide variety of reasons.

 

First, they’re extremely powerful legal “tools” that can help your team get its point across even when the topic is too complex for the court to truly understand, or to lean the verdict in your favor when there are circumstances that can go either way.

 

Then, they’re so commonly used, that you simply have to consider them if you want to stay ahead of the competition and stand a chance at winning.

 

However, the rules and regulations for expert witnesses are complicated, and the way they function can be difficult to understand.

 

One issue that a lot of our clients have when they come to us is figuring out whether they need to use a retainer or not to secure an expert witness.

 

Today, we’re going to shed some light on that question.

 

Let’s get started.

 

Do You Have to Use a Retainer for an Expert Witness?

 

First and foremost, let’s answer the core question. Usually, people who are new to litigation wonder if they have to keep an expert witness on a retainer or not if they want to use them.

 

The answer is no.

 

You can use an expert witness with or without a retainer.

 

However, which decision you make will largely be dictated by your circumstances. Depending on what’s going on, you might want to use a retainer for a strategic reason, or you might opt to simply get an expert on board when it’s time to start preparing for the actual in-court litigation.

 

Obviously, that leaves a lot uncovered. You still need to know which circumstances are appropriate for which decision, how to properly handle whichever decision you make, and of course, how that decision can affect your case.

 

We’ll cover those factors over the next few sections.

 

When Should You Use a Retainer for an Expert Witness?

 

While not required, it is recommended in most situations to retain your expert witness as early as possible. Since they’re most commonly used in claims court, we’ll use the discovery period as a benchmark. In most cases, you’ll want your expert witness before the discovery process begins.

 

This is because the witness can help you develop your case. They’ll still have to abide by rules that we highlight later, but getting to speak to an expert and understand more about the situation you’re in from their point of view can give you valuable insight into how you can present your arguments effectively, what you can do to maximize the usefulness of the expert witness, and identify any potential pitfalls for your case.

 

 Since there are far more situations where this is the optimal path to take, we won’t list individual reasons to do so. Instead, we’ll leave that to the section for when you might consider not retaining one right away.

 

When Should You Not Use a Retainer?

 

Not using a retainer puts you at a major disadvantage when it comes to getting the most out of your expert witness. You miss out on the early-case benefits.

 

However, there are a couple of instances where it might be useful.

 

First, you might not be sure you even need an expert witness. They’re not cheap, and if you end up having a clear-cut case that simply doesn’t need an expert to weigh in for any specific details, it can be an acceptable move to hold off and get an expert only if and when you need them.

 

Then, there’s the case where you simply can’t find one that matches your case’s needs.

 

The rules for expert witnesses that we’ll be discussing later will affect the pool of potential expert witnesses you have to choose from. As such, finding an unbiased expert witness early on who can abide by the rules and regulations can be difficult in some cases, and you don’t want to retain someone who can damage your case just because you see the need for an expert witness in general.

 

The Impact of Retaining an Expert Witness for Your Case

 

We touched on this in a previous section, but the impact of retaining an expert can be dramatic. In fact, it can completely shape your case in a different direction than you expected.

 

This is due to a few benefits you get by placing a retainer on them before the discovery period starts.

 

1: Secured Professional Help

 

An expert witness isn’t allowed to be attached to either side before working with them. There can’t be any biases or conflicts of interest that can affect the case.

 

As such, if you find a great expert witness who is going to be targeted by the opposition, and you retain them early, you stop that resource from being used against you. They can’t suddenly switch teams once you’ve hired them.

 

This doesn’t happen all too often. As you’ll see later, you usually want an expert witness whose personal experience aligns perfectly with your side of the case while remaining unbiased. It can happen, though.

 

2: Early Help Developing an Argument

 

Whether you win or not depends on how you manage to convince the court that your claim is legitimate and the opposition’s counterclaim isn’t. If you don’t put together a good case, it doesn’t matter how you feel or if you are technically right.

 

As we said earlier, retaining an expert witness early, before the discovery phase, allows you to keep that expert witness on your team and consult them regarding their opinions on different factors of the case that come to light. Whether those are details about your case that you didn’t know or information that is divulged by the opposition.

 

You can’t persuade the expert or otherwise insert bias into their eventual testimony, but you can get an understanding of their perspective. That allows you to take a different approach to an argument, change the focus of your case, etc to heighten your chances of winning the case.

 

3: More Time to Understand the Expert’s Testimony

 

 When it comes to expert witnesses, you have to know exactly what they’re going to say. You can’t manipulate their testimony or persuade their opinions. So, it’s likely that they’ll have experiences that both align and misalign with your case’s focus. If you retain them early and build a relationship, you get more of an understanding of what they’ll say, and you can decide whether it’s a good idea to keep them on board or not.

 

Selecting an Expert Witness for Retainer

 

As we’ve said, you’ll likely want to retain an expert witness early on in a case. However, actually doing that is a difficult process.

 

There are a number of rules you and the witness have to follow, and then you have to consider what the witness is going to bring to the courtroom with their testimony.

 

First, let’s start with understanding the rules.

 

The Rules of Using an Expert Witness

 

The rules for using an expert witness in court are strict, and outside of a few exceptions, you usually either follow the general rules exactly, or the expert you’re paying will have their testimony thrown out. That’s costly both in terms of your court costs and in terms of whether you win the case or not.

 

First and foremost, the expert witness must provide an unbiased testimony, and the testimony must only be based on facts learned through their first-hand experience in a professional field.

 

So, if you’re claiming damages for an injury, and you have a doctor as your expert witness, the doctor would only be able to leverage first-hand experiences they have had in their line of work while explaining things to the court. For example, if they wanted to explain that your broken arm could put you out of work for 5 months, they’d have to have experienced that with another patient in the past. They couldn’t opine on how they think it’s possible without any sort of experience to back it up.

 

They also can’t be attached to you or the other party in any way in the vast majority of situations. While some exceptions are possible, and those have their own rules, expert witnesses are supposed to be neutral third parties. They can’t be your brother who happens to work in the field, a doctor who treats you (in most circumstances), the opposition’s ex-wife, or anything like that. That creates the potential for corruption and conflicts of interest.

 

There are also strict guidelines for what constitutes an “expert”. You can’t hire a first-year med student and have them function as an expert in your case. The person typically has to have a decade or more of professional experience, accolades from relevant high-profile organizations, and a positive reputation in their field along with high-level memberships.

 

On your end, you’re not allowed to try to manipulate the expert witness’s testimony in any way. So, using the previous example, let’s say your case hinges on them saying a broken arm can keep you out of work for 5 months, but the expert witness doesn’t believe that’s true. They have to testify that if you hire them. You can’t butter them up or otherwise “encourage” them to say things that benefit you.

 

If any of these rules aren’t met, it’s likely that any testimony the expert gives will be thrown out the second it’s discovered. That wastes all the money you spend retaining them, along with normal costs, and it can cost you a case you otherwise had an easy win with.

 

 All of this makes the selection process lengthy and hectic. You’ll probably need to screen several expert witnesses before finding the right one, and you have to truly be confident that what that expert says will benefit you. There’s no room for haphazard hirings or hoping for the best.

 

How Much Does It Cost to Retain an Expert Witness?

 

Retaining an expert witness drives up your court costs considerably. We’ll get that out of the way first. It’s an extra charge on top of paying the normal hourly wage.

 

The problem is, that we can’t give you a concrete number. There are a lot of variables that go into the pricing of expert witnesses.

 

However, we can give you some median numbers.

 

First, a retainer fee is typically around $2000. That is not the standard compensation for an expert witness. It’s just the fee you pay to retain them and keep them on board even when you’re not actively consulting with them or having them testify.

 

 On top of that $2000 retainer fee, you’ll also have to pay them an hourly wage. This is broken into two median numbers. 

 

First, medical experts typically come at a premium price. You’ll have to pay around $350 per hour for their services rounding up.

 

Then, non-medical experts aren’t much cheaper. You’ll still pay around $250 per hour with slight variances depending on their field and how in-demand they are.

 

It’s important to note that the per-hour wage has to be paid every time you’re consulting with them, and when they’re participating in the court process on your behalf. So, if you hire a doctor as your expert, and he puts 20 hours into the case, that’s $7000. However, that does not account for the retainer. If you choose to retain that same expert, and they end up working the same amount of hours, your overall cost is $9000. Of course, that doesn’t include all your other legal costs.

 

That’s a hefty amount to pay when you factor in everything else, as well. However, it’s more than worth it when you get the right expert witness and make the right moves in the courtroom.

 

Get Help with Your Expert Witness Needs From Litigation Legal Insight

 

This is all a lot to summarize in a brief guide. There are lots of small details that can pop up in individual scenarios, and your case is unique in general.

 

To help navigate this complex process, contact Litigation Legal Insight today.