Expert testimony is a fact of life in many cases, but how often do you actually read the terms of retention the expert proposes? I recently saw one agreement that an opposing party executed that contained this clause:
Client agrees to indemnify, defend, and hold [expert] harmless against all loss, cost, damage or expense (including reasonable attorneys and experts fees) and all liabilities and judgments, from claims made against [expert] resulting from its services for Client. [Expert] shall not be entitled to indemnification should any such claim be adjudicated to have arisen from [expert’s] gross negligence or willful misconduct.
Should any dispute arise over the services provided by [expert], or this Agreement, the prevailing party shall be entitled to receive its legal and experts fees and all costs of any litigation. All disputes shall be resolved in the state and federal courts for [a galaxy far, far away].
I suspect the indemnity agreement arose because the expert may have once been sued by an opposing party. Occasionally a party really does not like what an expert had to say and sues them for it or alleges some form of malpractice. There are many problems to pursuing a lawsuit like that, but it occasionally happens. What concerns me though is this clause obligations “client,” however defined, to defend the expert from those lawsuits. Why? What benefit does client get from this bargain? This clause is effectively requiring client to indemnify expert for his own negligence.
Second, what if expert botches the assignment? For instance, an expert could fail to complete the assignment on time, resulting in exclusion. The expert could miss authority or developments within the field that should have been included in their analysis and that substantively changes his opinions. This indemnity clause would bar a subsequent lawsuit against the expert witness unless it arose from gross negligence or willful misconduct. I would not sign an agreement like this.
As to the forum selection clause, it is not necessarily offensive, but it does not contain a choice of law clause. Which law governs the dispute, if one arises? Second, if you and your client are in Las Vegas and must sue your own expert, do you really want to file suit far from home?