By Bill Hartzer · Published
What the license permits
Reproduce the eight clauses verbatim, in whole, in an engagement letter, a retention agreement, or an internal policy. Attribute the source. That is the whole of it, and there is no fee and no permission to seek.
What the license withholds is reproduction in altered form under this name. That is a matter of function rather than proprietary instinct: a standard firms can edit and still call by the same name stops being a standard, and the point of naming it is that retaining counsel can ask does your protocol follow the Expert Record Standard and get an answer that means something.
The attribution line
The Expert Record Standard v1.0, from The Expert Record by Bill Hartzer (Hartzer Press), theexpertrecord.com/standard/
Where it goes
In an engagement letter, as a paragraph stating that the expert follows the Standard, with the clause text either reproduced or incorporated by reference to the version number. Appendix B — in the working papers — gives nine model provisions that put the Standard into operative terms, including the two that protect the retaining firm rather than the expert.
Adopting it across a firm
A practice adopting the Standard for every expert it retains needs three things beyond the clause text. A statement in the retention template, so the question is settled at engagement rather than raised at deposition. A named person who holds the current version and knows which engagements cite which version. And a decision, made once and written down, about what the firm does when an expert declines a clause.
That last point deserves more attention than it usually gets. An expert who declines clause five — reproducible analysis — may be telling you something important about the way the analysis was actually done, and the right response is a conversation rather than a waiver. An expert who declines clause six because a protective order in another matter constrains what may leave their environment is telling you something entirely different. The clauses fail for different reasons, and those reasons are never interchangeable.
When the other side objects
Two objections come up. The first is that following the Standard concedes that artificial intelligence was used. It concedes nothing of the kind, and the answer is that the protocol applies to every engagement, including those in which nothing was used at all — which is exactly why it belongs at retention rather than after the fact. A protocol adopted only when it is needed is evidence about the matter; a protocol adopted always is evidence about the practice.
The second is that the record the Standard requires is itself discoverable and therefore adopting it manufactures a production burden. That is true and it is the point. The record exists whether or not you keep it — the systems keep their own — and the difference between keeping it and not is whether the version that reaches the tribunal is the one you assembled deliberately or the one produced from a vendor's export under a third-party subpoena.
Versioning
The clause text is fixed at version 1.0. Any future version carries a new number and both remain published, so an agreement citing 1.0 keeps meaning what it meant when it was signed.
Cite the version in the engagement letter. An agreement that says the expert follows the Expert Record Standard without a number inherits whatever this page says on the day someone reads it, which is not what either party intended when they signed.
What adoption does not do
It certifies nobody. There is no register, no badge, no audit, and no body that verifies compliance, and any of those would be worse than useless — an unverifiable credential in this area would be examined on exactly once before it became a liability. What adoption does is state, in a document signed before the work began, the terms under which the work was done. Its evidentiary value comes from its date rather than from anyone's endorsement.
It makes no opinion admissible, and it answers no question a tribunal has to decide. The clauses describe conduct at the desk. Whether the resulting opinion is reliable, relevant, and properly supported is a separate question, governed by rules the Standard neither touches nor pretends to.
Telling us
You do not need to. If you would like the adoption noted, write to record@theexpertrecord.com.