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Surprising Revelations on Experts and Contingent Fees

By Michael Hoenig
October 02, 2015

A decision by the U.S. Court of Appeals for the Eighth Circuit issued at the end of July, Taylor v. Cottrell, 2015 U.S. App. LEXIS 13173 (8th Cir. July 29, 2015), stimulates consideration of important questions that many of us don't think much about. We will discuss the recent Taylor decision later in this article. First, we focus on the questions and some background information.

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, and probably even 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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