Ethical Issues with Expert Witnesses in Litigation
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Ethical Issues with
Expert Witnesses
Litigation Academy
U.S. District Court
October 11, 2018
Outline
of
Topics
1.
General Duties
2.
Locating an Expert Witness
3.
Fees
4.
Disclosures
5.
Omitting or Coloring Evidence
6.
Disclosures of Client Confidences
7.
Modifying Expert Reports
1.
General
Duties
Always Keep in Mind
Litigation should be focused
“to the end that the truth may be ascertained”
Fed. R. Evid. 10
2
~~~~~
Role of Lawyer vs. Role of Expert
Lawyer :
“zealous” advocate for their client
Expert:
expected to tell the truth, regardless of how it
effects the client on whose behalf she is
testifying
ABA says expert does not owe a duty to her
client
(
Formal Opinion 97-407
)
Expert’s
Role
ABA
: “unlike attorneys, expert witnesses do not
owe a duty of loyalty to their clients. An expert
must remain independent from his or her ‘client’
and not become the client’s advocate. In essence,
an expert must analyze, explain, and offer an
accurate opinion of the relevant issue before the
court, not strive to advocate and persuade the
fact-finder of a certain point of view. The expert’s
main duty to provide truthful and accurate
information comes from the court and the ethical
guidelines of his professional organization, if any.”
14
Georgetown Journal of Legal Ethics
217 (2000)
Expert’s
Role
Who May Testify As An Expert
-
Fed. R. Evid. 702
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form
of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Expert’s
Role
Sources Upon Which Expert May Rely
-
Fed. R. Evid. 703
An expert may base an opinion on facts or data in the
case that the expert has
been made aware of or
personally observed
.
If experts in the particular field
would reasonably rely
on those kinds of facts or data in
forming an opinion on the subject, they
need not be
admissible for the opinion to be admitted
. But if the
facts or data would otherwise be inadmissible, the
proponent of the opinion may disclose them to the jury
only if their probative value in helping the jury evaluate
the opinion substantially outweighs their prejudicial
effect.
Can testify as to ultimate issue –
Fed. R. Evid 704
Need not disclose underlying facts –
Fed. R. Evid 705
Expert’s
Role
Experts may have their own
professional codes of conduct
AMA, APA, etc.
2. Locating
an Expert
Witness
Technical, Scientific, Medical Journals
(authors)
Google the topic
Ask client
Last resort – expert witness ads/websites
3. Expert
Fees
Rule 3.4. Fairness to Opposing Party and Counsel
A lawyer shall not: (b) falsify evidence, counsel or assist a
witness to testify falsely, or
offer an inducement to a
witness that is prohibited by law;
Commentary
- it is
not improper
to pay a witness’
expenses or to
compensate an expert witness
on terms
permitted by law. The common law rule in most
jurisdictions is that it is improper to pay an occurrence
witness any fee for testifying and that it is
improper to pay
an expert witness a contingent fee
.
4. Disclosures
Retained
or specially employed to provide
expert testimony – written report required.
Fed. R. Civ. P. 26(a)(2)(B)
Consulting
expert – no disclosure required.
Fed. R. Civ. P. 26(a)(2)(C); 26(b)(4)(D)
Drafts
of any report or disclosure are
protected.
Fed. R. Civ. P. 26(b)(4)(B)
5. Omitting
or Coloring
Evidence
Rule 3.3. Candor Toward the Tribunal
prevents a lawyer from falsifying evidence or assisting a
witness in false testimony.
This could affect expert testimony in two ways.
First, it forbids an attorney to permit an expert witness
to testify as an expert
in an area that is not scientifically
valid
.
Second, it forbids the lawyer to
coax opinions
from the
expert that are
beyond the realm of the expert’s
specialized knowledge
. Such coaxing would result in
unreliable testimony (from the false claim of expertise),
as the expert would be testifying in an area in which she
possesses no expertise.
6. Disclosures
of Client
Confidences
Rule 1.6. Confidentiality of Information
(a) A lawyer
shall not reveal information relating to the
representation of a client
unless the client gives
informed consent, except for disclosures that are
impliedly authorized in order to carry out the
representation
7. Modifying
Expert
Reports
Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit
or misrepresentation;
~~~~~
Any time an attorney finds themselves considering
engaging in a conversation with the intent of minimizing
certain facts or opinions, an attorney should reconsider
in light of this rule.
This article discusses ethical considerations related to expert witnesses in litigation, highlighting the differences in roles between lawyers and experts. It emphasizes the importance of truthfulness and independence for expert witnesses, along with their qualifications and the sources they may rely upon when testifying. The American Bar Association (ABA) guidance is also provided regarding the duty of loyalty and advocacy for expert witnesses compared to attorneys.
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Presentation Transcript
Ethical Issues with Expert Witnesses Litigation Academy U.S. District Court October 11, 2018
1. General Duties 2. Locating an Expert Witness 3. Fees 4. Disclosures 5. Omitting or Coloring Evidence 6. Disclosures of Client Confidences 7. Modifying Expert Reports Outline of Topics
Always Keep in Mind Litigation should be focused to the end that the truth may be ascertained Fed. R. Evid. 102 ~~~~~ Role of Lawyer vs. Role of Expert 1. General Duties Lawyer : zealous advocate for their client Expert: expected to tell the truth, regardless of how it effects the client on whose behalf she is testifying ABA says expert does not owe a duty to her client (Formal Opinion 97-407)
ABA: unlike attorneys, expert witnesses do not owe a duty of loyalty to their clients. An expert must remain independent from his or her client and not become the client s advocate. In essence, an expert must analyze, explain, and offer an accurate opinion of the relevant issue before the court, not strive to advocate and persuade the fact-finder of a certain point of view. The expert s main duty to provide truthful and accurate information comes from the court and the ethical guidelinesofhis professionalorganization, ifany. 14 Georgetown Journal of Legal Ethics 217 (2000) Expert s Role
Who May Testify As An Expert -Fed. R. Evid. 702 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form ofanopinionorotherwise if: (a) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles andmethods; and (d) the expert has reliably applied the principles and methods tothe facts ofthe case. Expert s Role
Sources Upon Which Expert May Rely -Fed. R. Evid. 703 An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Cantestify as toultimate issue Fed.R. Evid 704 Need notdisclose underlying facts Fed.R. Evid705 Expert s Role
Experts may have their own professional codes of conduct AMA, APA, etc. Expert s Role
Technical, Scientific, Medical Journals (authors) Google the topic Ask client Last resort expert witness ads/websites 2. Locating an Expert Witness
Rule 3.4. Fairness to Opposing Party and Counsel A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; Commentary- it is not improper to pay a witness expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee. 3. Expert Fees
Retained or specially employed to provide expert testimony written report required. Fed. R. Civ. P. 26(a)(2)(B) Consulting expert no disclosure required. Fed. R. Civ. P. 26(a)(2)(C); 26(b)(4)(D) Draftsof any report or disclosure are protected. Fed. R. Civ. P. 26(b)(4)(B) 4. Disclosures
Rule 3.3. Candor Toward the Tribunal prevents a lawyer from falsifying evidence or assisting a witness in false testimony. This could affect expert testimony in two ways. First, it forbids an attorney to permit an expert witness to testify as an expert in an area that is not scientifically valid. Second, it forbids the lawyer to coax opinions from the expert that are beyond the realm of the expert s specialized knowledge. Such coaxing would result in unreliable testimony (from the false claim of expertise), as the expert would be testifying in an area in which she possesses no expertise. 5. Omitting or Coloring Evidence
Rule 1.6. Confidentiality of Information 6. Disclosures of Client Confidences (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation
Rule 8.4. Misconduct It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 7. Modifying Expert Reports ~~~~~ Any time an attorney finds themselves considering engaging in a conversation with the intent of minimizing certain facts or opinions, an attorney should reconsider in light of this rule.
