Expert Witnesses on a Contingent-Fee Basis

Disciplinary Rule DR 7-109(c) of the Code of Professional Responsibility which, in one form or another, has been adopted in virtually every state, states that it is unethical for a lawyer to employ an expert witness on a contingent fee basis. This profess ional prohibition has prevented millions of litigants (mostly plaintiffs) from retaining and using one or more expert witnesses to help prove complicated matters which requires an expert's opinion and testimony.

Charles Mueller, Editor of Antitrust Law & Economics Review, stated in a recent editorial in his journal (Vol. 25, No. 4, 1994, at pp. 1, 3) that:

When the U.S. courts changed the antitrust rules in the '70s to require structural proof in even the "conduct" cases - to demand of every plaintiff a threshold showing of the defendant's "market power" before considering the merits of t he complaint -- they effectively mandated the hiring of economic experts by all anitrust plaintiffs. And it is the high and fixed cost of hiring such experts that has denied all but the wealthiest of plaintiffs effective access to the U.S. courts and thus dried up the cases. ...

After years of pondering how the barrier imposed by this prohibitive (flat-fee) cost of hiring the needed plaintiffs' economic experts in antitrust cases might be breached, I happened to mention it in a conversation with a New York antitrust a ttorney, Mr. Carl Person (see page 81, below), and was pointed to a most interesting case, In the Matter of Leo M. Shore/Parklane Hosiery Company,<\I> 415 N.Y.S.2d 878 (1979), approving an "understanding reached with these three expert witnesses (which ) was essentially that they would have to look to whatever fee was awarded by the court."

I believe that the standard for many cases will be "a reasonable fee", even though it is contingent and even though it amounts to a percentage of the recovery.

Anyone interested in becoming an expert witness on a contingent-fee basis in any type of litigation, including the legal basis, should communicate with Carl E. Person by e-mail to, by telephone to 212-307-4444 or by fax to 212-307-024 7 to discuss the matter, including the expertises which you might like to make available in any part or parts of the United States.

Any attorney or client interested in discussing the possibility of using an expert witness on a contingent-fee basis in any type of litigation, including the legal basis for such use, should communicate with Carl E. Person by e-mail to m, by telephone to 212-307-4444 or by fax to 212-307-0247 to discuss the matter, including the type(s) of expert(s) the client may wish to retain.

A typical situation might give the expert up to 10% or more of any recovery in the lawsuit after deduction of out-of-pocket expenses, depending on the amount of preparation, the estimated time involved, the extent to which the expert's own out-of-pocket e xpenses are covered, the level of expertise required, and various other free-market considerations. Thus, if the recovery in a case were $515,000 and the out-of-pocket expenses were $15,000, the expert working on a 10% contingent-fee basis would receive $50,000 in compensation for his/her preparation and testimony. Of course, if the trier of fact held for the other side or the client dropped the case, the expert would receive no compensation.

This is a brand new field and has great potential for everyone concerned.

One last thought. An "expert" under federal law (Rule 702 of the Federal Rules of Evidence) could be anyone who qualifies as such "by knowledge, skill, experience, training, or education" and such person "may testify thereto in the form of an opinion or otherwise." With the increased complexity of world affairs, there are more and more persons who undoubtedly would qualify as expert witnesses in the right type of case.