“Surprising Revelations on Experts and Contingent Fees”

It can be interesting to peel back onion skin layers of law and find new legal rules. Consider for example the following two paragraphs on contingent fees and expert witnesses. Then go read the entire article: “Surprising Revelations on Experts and Contingent Fees.” The entire onion on that topic appears to have been nicely peeled, analyzed and explained by Michael Hoenig of Herzfeld & Rubin in a September 16, 2015 article.

“Can experts be retained on a contingency fee basis, that is, get paid a fee based on the outcome of the case? At first blush, the answer would seem to be “no.” Litigators will recall, at least in the deep recesses of their memory, that there’s something wrong about entering into contingent-fee arrangements with experts. It’s not ethical, not kosher, probably a kind of taboo. Such initial instincts or imprecise recollections are well-founded. Generally, the law does, indeed, frown upon lawyers retaining experts to be compensated depending on the outcome of the litigation.

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Sounds pretty clear-cut, right? No contingency fees for experts, period! But, when one peels away the bold surface statements, one may find some nuanced questions, possibly devilish ones. So, for example, does the prohibition apply to all retained experts or only those who actually will testify? Surprise! The Restatement, Third, in §117’s comment c (“Compensating an expert witness”) starts out with the no-contingency rule but then declares: “The prohibition against contingent compensation does not apply to an expert retained only to consult and not to testify or otherwise present evidence.”

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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