Engaging with Employment Attorney, Merry Campbell

Contracts decide more than pay. They decide credibility, leverage, and whether your independence will stand up under scrutiny. We sit down with attorney Merry Campbell, Chair of Employment and Labor Law and Corporate Investigations at Shulman Rogers, to unpack how expert witnesses can safely operate as independent contractors without triggering misclassification, payment delays, or discovery landmines. From the default presumption of W‑2 employment to the maze of federal and state tests, Merry explains why “1099” is a claim you have to earn and document.

We walk through the realities that make an independent contractor model viable for experts: freedom to accept or reject engagements, control over rates and scope, and the ability to serve multiple clients. Then we translate those realities into contract language that holds up. You’ll hear concrete guidance on defining compensable work, setting invoicing cadence, structuring milestones for termination, and avoiding any clause that ties payment to case outcomes. Merry Campbell shares pragmatic strategies for getting paid when intermediaries sit between you and the end client, how to request periodic status updates without creating forgettable obligations, and the exact red flags that opposing counsel will use to attack your neutrality.

If you want your practice to run like a business, and your contract to prove it, this conversation will sharpen your approach to classification, negotiation, and payment. 

Transcript

Welcome And Guest Introduction

SPEAKER_00 0:01

This episode is brought to you by Roundtable Group, the experts on experts. We've been connecting attorneys with experts for over 30 years. Find out more at RoundtableGroup.com.

SPEAKER_02 0:14

Welcome to Engaging Experts. I'm your host, Snow Ballmer. Today's guest, Attorney Mary Campbell, is the Employment and Labor Law and Corporate Investigations Chair at Shulman Rogers. She is frequently quoted and well published by highly respected industry and news outlets and has been honored as a top attorney by Bethesda magazine. Ms. Campbell holds a JD from Harvard. Ms. Campbell, thank you so much for joining me here today on Engaging Experts.

SPEAKER_01 0:40

Glad to be here. Thanks so much for inviting me.

Employee Versus Contractor Basics

SPEAKER_02 0:42

Of course, let's jump into it. So for today's show, I'd like to focus on independent contractors, an area in which you have considerable expertise. So let's talk a little bit about independent contractor basics. What does it mean legally to be classified as an independent contractor versus an employee?

SPEAKER_01 1:01

That's a pretty broad question. I think the best way to think about it is for most employers, when you have a worker coming to provide services for you, the default understanding from the government's perspective and from a lot of plaintiff lawyers' perspective is that every worker is a W-2 employee and should be compensated as such. And W-2 employees often have uh you know particular protections. Uh, the anti-discrimination laws come to mind, other protections that are legally based. They also have certain benefits. Those can be statutory, for example, things like unemployment, workers' comp. Um, and they can also be elective, things like some of your insurance benefits, healthcare kind of falls quasi-statutory and quasi-uh, choose your own adventure. Um, but uh sick leave uh also could be sometimes statutory. And and then things like vacation and all the other goodies you provide to your employees, your regular W-2 employees. If someone comes to you and wants to be a contractor, a 1099, um, if you in the in the typical situation, you have to overcome the presumption. So most employers understand that their workers have to be W-2 employees, and you have to fit certain legal criteria in order to qualify as a 1099 contractor. There are certainly some advantages, some disadvantages, and some advantages to being a 1099 contractor. You have a little more freedom and control over your work. You can negotiate who owns the work product in some circumstances. Um, similarly, there's some tax differences. That's not always an advantage, but it's a tax difference, a different treatment in terms of um, you know, potential your equipment, your travel, things like that might be taxed differently. Um, and because you are not entitled uh to some of these benefits, if you're working as a 1099, sometimes the compensation rate is higher to reflect um, you know, the the value of the service, less these sort of extra goodies that you might get if you were in fact a W-2 employee.

SPEAKER_02 3:14

Does a lot of this depend on venue, what state you live in, or is a lot of this kind of more at the federal level? How does this affect expert witnesses who live in a variety of different locations across this country?

SPEAKER_01 3:27

Great question. And these are the kind of questions that keep me employed as a lawyer. There's no straight answer. Um, they are what my husband calls Dimmler, uh, which is a series of laws at both the federal and state level that are similar but different. Even at the federal level, there are different tests depending on which agency or department is looking at the 1099 status, the independent contractor status. So Department of Labor has a slightly different test than the IRS. And there are scenarios where you can qualify as an independent contractor under one test, but for one agency, but not the other test, not the other agency. Um, and then again, there are uh different tests at the state and local level. So because the default understanding is that you are a W-2 employee, where this will often come up is when someone files for unemployment following the end of the working relationship. Remember, if you are a 1099 contractor, you're not entitled to unemployment. But that also means that your employer or your the entity you've been contracting with has not been paying your um unemployment taxes, has not been making the employer contributions. In that scenario, it is not uncommon for the state level unemployment uh agency to want to take a closer look at that relationship, determine whether or not you are properly classified as a 1099 or should have been a W-2, and those required contributions should have been made.

SPEAKER_02 5:05

Let's talk a little bit about the intersection of independent contractors and expert witnesses. To what extent does this affect experts? Are a lot of experts themselves independent contractors?

Expert Witnesses As 1099s

SPEAKER_01 5:18

I've seen it. I I work with several organizations that work with independent contractors. I mean, excuse me, that work with expert witnesses, and I've seen them characterized under both frameworks, under, you know, in some circumstances under W-2 and in some circumstances under 1099. In some industries, uh, when clients come to me, I I strongly encourage them to move away from the 1099 model because it's not one that really fits the reality. I would say expert witnesses is one of those rare, rare breeds where in fact we can make 1099 relationships work. Um, that said, it really depends on the nature of the relationships. So if the organization um is views itself as a little bit more of a matchmaker than an employer, so they are the go-between between the law firms or the various organizations that might need an expert witness, and do the cultivation of various resumes, gather, kind of does a review to make sure that the expert is who they say they are, has the background that they say they have, et cetera, et cetera.

SPEAKER_02 6:24

So like an expert witness referral agency, for instance.

Control, Choice, And Multi‑Client Work

SPEAKER_01 6:27

Correct. If if the relationship, if the if the work, the entity that for whom you're providing the services, I'm trying to avoid saying the employer, if the entity for whom you're providing the services is really more like that agency or matchmaker role, then that is one where the 1099 relationship can be justified. Uh, one of the keys there is that the contractor is supposed to be able to control the economics of the situation. So they the relationship has to be one where the contractor has an opportunity to, for example, and these are all just examples, there's no one right or wrong answer, but they might have the opportunity to accept or reject work, to set their own rate, to do it on a project basis instead of an hourly basis. All of these things are um factors that support the notion that they're an independent contractor. And similarly, we'd like to see that they have the opportunity to provide those services to multiple different agencies, not just to one. Any of these things, you know, we can just know one of these is dispositive. So if, in fact, you know, we're we are not comfortable with an answer on one of these factors, but the rest of them all look good for 1099 status, then we might get some comfort there. Um, but these are all various things that we can look at to support and justify the 1099 relationship.

SPEAKER_02 7:52

I'd like to talk a little bit about the agreement between the parties here and go through just some of the specific kinds of terms, conditions, negotiating points that independent contractors go through. And I'd like to start with uh which party drafts the contract in the first place? Should the expert prefer their own firm's agreement as a starting point? Should they go with whatever the attorney gives them? What do you recommend?

SPEAKER_01 8:18

So there's like an old lawyer saying that you know, to the drafter goes the spoils. So a lot of times uh the party with more control here would prefer to draft a document. That's usually going to be the um entity for whom you're providing the services, but not always. Um, so if you have particular causes, particular approaches that are really important to you, I think it's important that you take a look at those. Maybe hire your own lawyer to come up with language that passes legal scrutiny and at minimum be in a position to share those select provisions with the entity you're working with, if not coming up with an entire agreement of your own drafting.

SPEAKER_02 9:01

What are some of those key provisions? What are some of the most important points that experts should be familiar with and thoroughly read before signing anything?

Key Contract Clauses That Matter

SPEAKER_01 9:11

So, like everyone who provides services, you want to be paid, right? So, how how when do you have to invoice? How often are you being paid? What is considered um product for which you will be paid? Are you paid by the hour? Are you paid by the work product? As an expert witness, you want to be very careful that you the language does not say that you're paid for your opinion. Um, a good lawyer will um work pretty hard to destroy your credibility if that's how you're being paid. But you certainly can be paid for your time. You can be paid for the report itself for the project. Um, but those are things you want to think through. And sometimes either the entity you're working for or the um, you know, the law firm or the, you know, the end user might have some thoughts on this as well. But these are all things to pay attention to. You want to think about how the contract can be terminated and whether you get partial payment and and in what amounts and how is that calculated. Um, and then beyond that, you want to think about things like indemnification. You want to be clear about what expenses are reimbursed and you know, if travel is required, things like that, things that can be fairly costly. You know, often if I'm working with the entity who for whom you're providing services, I'm advising them not to pay for your travel because that looks more like a W-2 employee. But maybe you can negotiate a higher rate to encompass those travel rates. And so you you get you're fairly compensated for the work you're providing without it falling into the trap of looking more like a W-2 relationship.

SPEAKER_02 10:45

You mentioned termination. How should termination clauses be structured?

Termination, Milestones, And Cash Flow

SPEAKER_01 10:50

One, they want to make sure that they can get out of the relationship, right? That they can end, that it's a mutual termination. And, you know, push comes to shove, you're usually able to get out of that relationship, but you also want to be fairly compensated for the work that you've provided. So you want to think about prorated compensation, maybe think about if you're doing this on a project basis, milestones for which you'll be compensated if it's hourly, that you'll be paid a promated rated amount. Um, you know, we we talked a little bit about timing of payments. And so certainly at termination, if they owe you a lot of money, that's a harder situation than if you've negotiated that payments are going to be made on a monthly basis. You know, so those are all things that kind of go, there are elements, various levers you can push that go hand in hand and make sure that you don't find yourself in a pickle if it doesn't work out.

SPEAKER_02 11:40

One of the more frequent complaints that I've heard from expert witnesses is that occasionally can be a little bit difficult to be to get paid. And you've you've you've uh mentioned this a little bit. What are some of the things that expert witnesses can do in these contracts to ensure that they are protected in situations where either the attorney is waiting for payment from the end client or they just haven't paid in a timely manner? What are the sorts of things that experts can do to add a little bit of a bulwark against that?

Getting Paid When Clients Delay

SPEAKER_01 12:10

Well, that's an interesting question. And like all contract negotiations, it kind of comes down to what leverage you have. You know, in some circumstances, you might be able to negotiate for some type of indemnification or payment obligation from the entity for whom you're providing the services, right? So if the end user is a law firm, maybe your contract is with the um expert entity and that they're required to pay you regardless of whether or not the law firm pays them. That is something you can negotiate for. You can certainly imagine that the entity is looking for a different term. You know, no one wants to be left holding the bag. But those are all things to at least be aware of as you're looking at these payment terms so that you understand what is your risk here in terms of whether or not you'll be paid.

Status Updates And Case Visibility

SPEAKER_02 13:01

Sometimes experts, and I would say even on balance, the majority of the time, experts aren't made aware when a case either goes to settlement or concludes in some fashion. They do their piece and then they move on. Should they be putting something in the contract so that they are informed or have some idea of the disposition of the case after their part is over?

SPEAKER_01 13:22

It's an interesting question. I've I've not seen that, which doesn't mean that it shouldn't, shouldn't or is not in many of these contracts. I think that's an interesting idea. Um, you know, I do worry that it would be one of those provisions that is in there, but maybe not always um followed, only not for any nefarious reason, more because uh people forget. So if that is a concern for you, if you, you know, want to make sure you're not sort of drifting out there with no resolution, maybe think instead of that one obligation, think about an ongoing you're required to check in with me on a monthly or quarterly basis to let me know the status of the case. And so that way there's something on the books, a reminder for everybody that we should be checking in.

SPEAKER_02 14:08

In a uh in a contract between an expert witness and an attorney, there's kind of an inherent imbalance in the ability to enforce provisions because the expert is an expert in whatever their field is, but at the end of the day, the other party is an actual attorney. And so the best defense that experts have might be to know when to say no to a contract in the first place. Are there some common pitfalls or red flags that experts should be looking for in these in these contracts before signing in the first place?

SPEAKER_01 14:42

As I think that through, I think anything that that suggests that you're only paid if they're um if you know the attorney is successful in trial, right? The attorney might be working on a contingency basis, but you should not be paid for the success of your opinion, right? So anything that sort of triggers compensation to the end of the litigation where with a successful resolution, I think would be problematic. You want to be paid for the product, work product you've provided or the time you've spent. And so you really don't want to be in a position where you're waiting where where there's some type of delay in your compensation.

SPEAKER_02 15:26

Often during depositions, these sorts of contract provisions uh are used to impeach expert witnesses. Are these contracts themselves discoverable?

SPEAKER_01 15:38

It can be. Um, you know, I'm a recovering litigator, so I've not had a duke out one of these issues in a while. But I know in in disputes I've handled in my past, we do look for any language that makes it sound like compensation is somehow triggered based on the opinion that you ultimately give. So you need to make it very clear that you're neutral. You know, to my mind, this is more the obligation of the lawyer who ultimately wants to use you as an expert to make sure that, you know, they're not requiring anything of you in their contracts that could be used to impeach your credibility rather than the, you know, an obligation of the expert witness. But it's always good for you to be sensitive to those potential concerns.

Taxes, Deductions, And Insurance

SPEAKER_02 16:24

When we began our discussion, we talked a little bit, or you mentioned a little bit, about the tax implications of being an independent contractor. And in fact, that might be why it's uh some in in many professions an individual might be better off as a typical employee rather than a 1099. What are some of those tax and in insurance uh considerations that experts should be thinking about before deciding whether or not they should be independent?

SPEAKER_01 16:53

Uh well, I'll start with the tax consequences. So 1099 compensation is taxed differently than W-2 compensation. So we've already talked about some of the deductions that aren't made. Um, but you tend to get more money up front. On the whole, I am not a tax expert. This is this is uh, you know, I'm not as familiar with the weeds of it, but in my experience in talking to people, on the whole, um I I get the impression that ultimately you still end up paying tax you that that money is still taxable income and you still pay taxes on it, but it's just a dicks different rate, and you also have the opportunity, as we mentioned, to write off some of your expenses. And so, you know, my biggest recommendation for all of this is if you are pursuing independent contractor status, please work with an a reputable accountant because these are the things that are subject to challenge and you just want to get it right.

SPEAKER_02 17:53

And insurance considerations.

Negotiation Leverage For Experts

SPEAKER_01 17:54

Oh, sorry. And then in terms of insurance considerations, often the contract itself will ask you to confirm your understanding that you're not getting health insurance, you're not getting any of the standard W 2 benefits that uh regular employees of the organization are entitled to receive. So you should be on the lookout for that. Um, and then there might also be either an expectation that you either indemnify either the um entity or the you know the ultimate client of the services, or that you um at minimum show that you're carrying sufficient levels of insurance. Um and these requirement might vary from contract to contract, but you know, a good uh negotiator will be looking for some type of proof that, you know, if the proverbial stuff hits the fan that you are carrying sufficient um general insurance to cover a potential problem. You do want to look at it. Um, and you do want to look at at, you know, if the they're asking you to indemnify them for anything, I would be very weary and and want to get a better understanding of what that really means, um, what that indemnification means. But um sometimes you're looking to have them indemnify you, sometimes they're looking to have you indemnify them. And these are all things you just have to, you know, pay close attention to.

SPEAKER_02 19:21

In terms of negotiating, is there any inherent difference in negotiating as an independent contractor? Are you at any inherent disadvantage or advantage, or does it depend more on what your specific expertise is that you're being hired for?

Finding Great Cases And Staying Neutral

SPEAKER_01 19:37

Uh, I think that's a great question. And what I would what my response would be it, you know, uh advantage and uh disadvantage is all on how you perceive the world. Right. So one of the true values of being a contractor is you have a whole lot of freedom. You get to take on the projects you want to take on. You, you know, if you get to work with the people you want to work with, you get To take on the subject matter you want to take on, you get to work at the rates you want to work at. So you have a lot of freedom. Most of your freedom is in terms of rejecting, right? So unless you are the ultimate superstar in your field, you might not there, there are often more than one expert who could protect, potentially provide that services. So if what you're looking for is an advantage in those negotiations, it's more in terms of what you can walk away from. Um, but you know, if you've got that particular niche, that expertise, and you know that you are the perfect person to, you know, handle this particular concern, um, use your knowledge.

SPEAKER_02 20:42

Do you have any stories or cases that you can talk about, obviously without necessarily mentioning specifics, that illustrate any of these points about experts working in uh an independent contractor setting?

SPEAKER_01 20:56

That's always the hardest question because of those privileges uh that we've been talking about. But what I would say is not so much from a legal perspective, but just I think when you are a contractor uh providing these experts uh situations, you get the most interesting, the most exciting, the most um uh, you know, cocktail story, uh, cocktail party story stuff. And so it does keep your work, I think, more interesting, especially when you are in a situation where you can be a little more elective or selective with the cases that you're pursuing. You also get to be um uh, you know, work with people who really challenge, you know, the right lawyers know how to use an expert to really become you're you remain independent, you remain neutral, but you become a member of the team in terms of making sure that the work you're provided is used in the best uh best light possible.

SPEAKER_02 21:58

Do you use expert witnesses in your own practice?

SPEAKER_01 22:02

Uh well, as I mentioned, I'm a recovering litigator. So I have in the past, um, and I've uh cross-examined expert witnesses as well. But now at my stage, I do much more proactive counseling rather than uh litigating with expert witnesses.

Routines, Confidence, And Preparation

SPEAKER_02 22:19

Nevertheless, I'd like to ask you how expert witnesses get started on the right foot in general. What makes for a good expert attorney relationship?

Final Advice And Closing

SPEAKER_01 22:30

Oh, that's interesting. So I thought you were uh when you started this question, I I thought I was going down a slightly different path, which I'm gonna answer my question and then yours. But what I thought you were asking is, you know, sort of like how do you how do you find your way to the best, most interesting cases? And and and that really is in working with the best organizations to to match you with those lawyers, right? So be selective in the expert witness organizations that you're working with. Um, but then in terms of working well with the attorneys, I would remind you, as much as you are on a team, it you know, it might feel like a team, you are a neutral and you're an expert, and the value you bring is that neutrality. And so you want to make sure sometimes, you know, us lawyers kind of forget and are a little too colloquial or too a little too familiar with the experts. And I've always respected um when there's some pushback there, right? Your role, you are not a member of the team. You are a neutral who's coming in to help support, provide um your best understanding of the facts that are that are presented to you, but you are much more valuable when it is clear that that is the role you're serving and that you know your opinions can't be bought, your perspective can't be bought, that you would provide the same answer no matter who is um employing you.

SPEAKER_02 23:55

I have one more question that I ask all of our guests. Do you have any uh preparation routines that you use to get ready for a big day, whether it's a trial, a deposition, any kind of big action? Uh not just the typical preparation. I like to read my notes and whatnot, but I've had guests come in that like to do yoga or listen to heavy metal or drink coffee or abstain from alcohol. Or do you have any specific thing that just kind of gets you in the right mindset, gets you ready to go?

SPEAKER_01 24:25

To tackle the day. Oh, I am a full-time attorney with two kids trying to make my way through the world. So I my my best preparation is a good night's sleep. And uh really it's about confidence, right? So um if you start your day feeling like you've done everything you can to prepare for the day, then I'm gonna have a good day. Um, if I feel like I'm chasing one meeting to the next or one, you know, conversation to the next, I feel like that's when I uh feel the most panicked and feel like I'm really not prepared for what's coming.

SPEAKER_02 25:01

I love it. Before we wrap up, do you have any final advice for expert witnesses or attorneys working with experts for that matter?

SPEAKER_01 25:08

Uh my advice is as I think that this conversation is important and a good reminder that you do need a contract in these situations. The number of times I've seen people proceed on handshake deals or sort of emails back and forth, or whatever document is provided to them, they just sign it and move on. These are contracts and they do have ramifications. And when all goes smoothly, you don't have to think about it. But you know, there are a lot of lawyers who have professions because things never go smoothly. So um, you should really just be thoughtful about the relationships you're entering into.

SPEAKER_02 25:47

Absolutely sage advice. Ms. Campbell, thank you so much for joining me here today.

SPEAKER_01 25:52

Thank you.

SPEAKER_02 25:53

I appreciate it. And thank you as always to our listeners for joining us for another edition of Engaging Experts. Cheers.

SPEAKER_00 26:00

Thank you for listening to our podcast, Engaging Experts. Our show notes are available on our website, roundhuelgroup.com.