Nine Questions to Ask Before Retaining a Compensation Expert Witness

By the time a reasonable compensation question reaches counsel, the expert decision is usually made quickly — and it is difficult to unmake. The wrong choice surfaces at the worst possible moments: a Daubert motion, a deposition admission, a report the witness cannot defend. These are the questions we believe retaining counsel should ask any compensation expert — including us.

1. Have you been deposed and testified — and where?

Not “have you consulted.” Deposition and trial or arbitration testimony, with venues. An expert learns what survives cross-examination by being cross-examined.

2. Who will perform the analysis, and who will sign and testify?

Ask who will contribute to the work and how the testifying expert will supervise, understand and take responsibility for the opinions. Where a signed report is required, the witness must meet the applicable reporting duties and be able to explain and defend the analysis. Qualified assistance is not inherently improper; responsibility for the opinion cannot simply be delegated away.

3. What data will you rely on — and can you produce it?

Ask the expert to identify relevant data sources, explain comparability adjustments and limitations, and plan for required disclosures with counsel. Licensing or confidentiality restrictions should be addressed before relying on a source. Under Federal Rule of Evidence703, reasonably relied-on underlying information need not always be independently admissible; disclosure and admissibility remain separate questions.

4. Which methodologies fit this question, and why?

Market comparability, composite-role analysis and investor-return evidence can address different questions. The expert should explain why the selected methods fit the facts and governing standard, and identify limitations or useful cross-checks. Multiple methods are not universally required, and a single appropriate, reliably applied method is not automatically deficient.

5. Is any part of your fee contingent on outcome?

If the answer is anything but an immediate no, the interview is over. A contingent expert is impeached before the first substantive question.

6. Have you worked both sides?

Taxpayer and government perspectives; plaintiff and defense. A one-sided record invites the hired-gun cross — and usually earns it.

7. What happens if your analysis doesn’t support our position?

The right answer: you will hear it early, before disclosure deadlines and hardened positions. An expert who has never delivered unwelcome conclusions is not being retained for an opinion.

8. What is your conflicts process?

Party names should be checked before any confidential facts move. It protects the client, the expert, and the timeline.

9. What do you need from us, and by when?

Ask for a record request and work plan tied to the governing forum’s disclosure rules and the case schedule. Federal Rule of Civil Procedure 26(a)(2)(B) governs many retained-expert reports in federal district court; other courts and proceedings can have different requirements.

Grahall answers all nine on the record — engagement mechanics, deliverables, and fee structure are on our For Attorneys page, and every matter starts with a conflicts check: party names only, nothing confidential.

This material is general educational information, not legal or tax advice for a particular matter. Requirements vary by jurisdiction and can change. Counsel and tax advisers should verify the governing rules. No tax treatment, privilege, admissibility or case outcome is guaranteed. An inquiry does not create an engagement.