Examination of Expert Witnesses

George Mason American Inn of Court

February 23, 2000

Paper Prepared by

Maria Vouras

Ken Falkenstein

Liz Homoki

Larry Lewis

Jeffrey M. Summers

Part 1 - Outline

EXAMINATION OF EXPERT WITNESSES

1. Examination of Expert Witnesses under Federal Law
1. Standards for Expert Testimony
1. Required Reliability and Relevance of Testimony ⁽¹⁾
1. The introduction of expert opinion testimony is governed by Federal Rule of Evidence 702, which provides:
1. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise.
2. Court Must Be Gatekeeper
1. Daubert requires that the district court act as "gatekeeper" for the admission of novel scientific evidence. ⁽²⁾ To perform this function, the district court must conclude, pursuant to Federal Rule of Evidence 104(a),that the proposed testimony is:
1. reliable (i.e., constitutes valid "scientific knowledge," in cases involving scientific evidence); and
2. relevant (i.e., it "will assist the trier of fact to understand the evidence or to determine a fact in issue").
3. Factors in Determining Reliability and Relevance
1. In Daubert, the Supreme Court set forth the following nonexclusive list of factors to assess the reliability and relevance of proffered novel scientific evidence:
1. Whether the theory or technique at issue can be, and has been, tested.
2. Whether the theory or technique has been subjected to peer review and publication.
3. The known or potential rate of error and the existence and maintenance of standards controlling the technique's operation.
4. The extent to which the theory or technique has attained "general acceptance" in the relevant field.
2. Trial Court's Discretion to Admit; Appellate Review
1. In General Electric Co. v. Joiner, the Supreme Court held that review for abuse of discretion, the standard ordinarily applicable to review of evidentiary rulings, is also the proper standard for an appellate court to review a district court's decision to admit or exclude expert scientific evidence. ⁽³⁾ An appellate court will not reverse a trial court in such a case unless the ruling is manifestly erroneous. Therefore, the trial court to which a case is assigned (e.g. pro-plaintiff vs. pro-defendant, judicially conservative vs. judicially liberal, etc.) can affect the outcome of the underlying litigation. ⁽⁴⁾
3. Kumho: Daubert Applies to All Expert Testimony ⁽⁵⁾
1. Daubert specifically addressed "scientific knowledge" because that was the type of evidence at issue. However, Federal Rule of Evidence 702 also applies to "technical, or other specialized knowledge." In Kumho, the Supreme Court held that the Daubert gatekeeping obligation applies not only to testimony based on "scientific" knowledge, but also to testimony based on "technical" and "other specialized" knowledge, and hence, to all expert testimony. ⁽⁶⁾
2. Kumho noted that Federal Rule of Evidence 702 does not distinguish between "scientific" knowledge and "technical" or "other specialized" knowledge, but that any such knowledge might become the subject of expert testimony. The trial judge must determine whether any expert testimony has "a reliable basis in the knowledge and experience of [the relevant] discipline." In assessing the reliability of an expert's proposed testimony, a trial court has considerable discretion. The objective of Daubert is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."
3. The Advisory Committee on the Federal Rules of Evidence has proposed an amendment to Federal Rule of Evidence 702 which would apply Daubert criteria to all forms of expert testimony ⁽⁷⁾. While the relevant factors for determining reliability will vary from expertise to expertise, the amendment rejects the premise that an expert's testimony should be treated more permissively simply because it is outside the realm of science. ⁽⁸⁾ An opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist. ⁽⁹⁾
4. Post-Kumho Decisions ⁽¹⁰⁾
1. Early post-Kumho decisions reveal widely divergent approaches by the federal courts of appeals employing the abuse of discretion standard of review. Two decisions illustrate this divergence.
2. In Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. 1999), the court held it was an abuse of discretion to permit plaintiff's treating physician to testify that plaintiff's fibromyalgia was caused by a fall in defendant's store. Although the doctor had employed the standard protocols in the field for making a differential diagnosis, the court stated, the testimony was inconsistent with medical literature which found there were insufficient studies of whether fibromylasia can be caused by an injury.
3. By contrast, the 4th Circuit U.S. Court of Appeals in Westberry v. Mataki Kemi, AB, No. 98-1540 (4th Cir. 1999), found no abuse of discretion in permitting plaintiff's treating physician to testify on the basis of his differential diagnosis that plaintiff's respiratory problems were caused by airborne talc at his workplace. The court held that where the physician's diagnosis comported with standard medical practice by relying on physical examination, medical history and clinical tests, the testimony was admissible despite the absence of support in epidemiological studies or the medical literature.
2. Direct Examination of Expert Witnesses
1. Qualifications ⁽¹¹⁾
1. An "expert" is not viewed in a narrow sense. Under Federal Rule of Evidence 702, an expert is a person qualified by knowledge, skill, experience, training or education. District courts have broad discretion to admit or exclude offered expert testimony. A court may exclude testimony where the expert lacks training or experience in the field or where the expert appears to be unreliable.
2. Three Approaches Available to Develop Opinion Evidence ⁽¹²⁾
1. Federal Rules of Evidence 703 and 705 control the method by which counsel introduces opinion testimony from his or her expert.
2. Under Rule 703, counsel has three approaches available to develop opinion evidence:
1. expert may provide an opinion based upon his firsthand knowledge;
2. the expert may provide his opinion in response to a hypothetical question;
3. the expert may provide an opinion based on data presented to the expert outside of court and developed by someone other than the expert.
3. Rule 705 provides allows the expert to testify in terms of opinion or inference without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may be required to disclose the underlying facts or data on cross examination. This rule eliminates the need of elaborate foundation for expert opinion testimony. In most situations, however, the expert should be asked on direct examination to state in detail the basis of any opinions.
3. Use of Treatises ⁽¹³⁾
1. Learned treaties should be introduced during direct examination only if some need exists to do so beyond mere corroboration.
1. First, the lawyer who does so opens up the door to effective cross-examination on the basis of those treatises. If conflicting evidence appears elsewhere in the treatise, the expert will have undermined his own credibility.
2. Second, you should consider using a treatise only when you anticipate a strong challenge to the witness' opinions. Even then, it may be better to save the treatises for redirect examination.
3. Finally, too frequent reliance on learned treatises to bolster your expert's opinion may create the impression that you are concerned with your expert's testimony--it may be viewed as a sign of weakness or uncertainty.
3. Cross Examination of Expert Witnesses
1. Cross Examination on Credentials ⁽¹⁴⁾
1. A court's ruling that a witness may testify as an expert only means that the witness possesses sufficient credentials to pass the evidentiary threshold. It may still be possible to diminish the weight of the witness's qualifications during cross examination. Basic methods for discrediting a witness's credentials include:
1. limiting the scope of the witness's expertise;
2. stressing missing credentials, such as certifications, degrees or licenses;
3. contrasting your expert's credentials to point out an adverse witness's missing credentials
4. Use of Learned Treatises ⁽¹⁵⁾
1. Impeachment through the use of a learned treatise is a form of cross examination unique to expert witnesses. Under Federal Rule of Evidence 803(18), an expert witness may be confronted with statements contained in "published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art," so long as they are established as reliable authority. Under Rule 803(18) the reliability of a learned treaties may be established either by admission of the witness, or by other expert testimony, or by judicial notice.
2. Challenge the Witness's Impartiality ⁽¹⁶⁾
1. Counsel must bring to the jury's attention all matters that may affect the objectivity of the expert, such as:
1. Compensation paid to the expert, including whether higher compensation is paid for testifying than for normal consultations.
2. Relationship with the plaintiff or the defendant.
3. Relationship with plaintiff's or defendant's industry or other companies in that industry.
4. Extent to which the expert testifies or consults in litigated matters.
5. Whether the expert testifies exclusively for plaintiffs or defendants.
6. Whether the expert offers the same opinion in every case.
7. Relationship to opposing counsel.
8. Interest in the outcome of the case, whether philosophical (an expert who testifies for "causes" he or she supports) or economic (expert's fee is contingent).
3. Point Out Omissions ⁽¹⁷⁾
1. A lawyer must pursue thorough discovery to determine whether processes were shortcut or slighted, preferably after first consulting his/her own expert.
2. Substitute Information ⁽¹⁸⁾
1. Change Assumptions -- Ask the witness to alter an assumption, substituting one that you believe to be more in keeping with the evidence in the case.
2. Vary the facts upon which the expert has relied, or suggest additional facts.
3. Degree of Certainty -- It is possible to challenge an expert's degree of certainty by suggesting alternative scenarios or explanations.
4. Dependence on Other Testimony
1. The opinion of an expert witness often depends upon facts to be established by other witnesses.
2. Thus, the expert's testimony may be undermined by challenging its factual underpinnings during the cross examination of the fact witnesses.
3. It is necessary only to obtain the expert's concession that the other witness's facts are essential to her opinion.
4. Challenge Technique or Theory ⁽¹⁹⁾
1. Challenging the witness's method, theory or logic is the most difficult form of expert cross examination. It is possible, but extremely unlikely, that an expert will agree that she made a mistake or that her reasoning is faulty. In most cases you have little to gain by confronting an expert with any but the most glaring flaws, since that will only afford her an opportunity to explain. It is usually far more effective to use your own expert to point out the opposition's errors and then to draw your own conclusions during final argument.
2. Local Rules of Federal Court - District Court for the Eastern District of Virginia
1. Expert Disclosures - Rule 26(D)
1. Rule 26(D)(1) Agreement upon disclosure
1. counsel is encouraged to agree on sequence and timing of expert disclosures required by Fed. R. Civ. P. 26(a)(2)
2. form: consent order entered by the Court
2. Rule 26(D)(2) timing of mandatory disclosure
1. absent consent or other order:
1. Fed. R. Civ. P 26(a)(2) disclosures shall be made by:
1. plaintiff - not later than sixty days before the earlier of date set for completion of discovery or final pre-trial conference, then evidence that is solely contradictory or rebuttal fifteen days after defendant's disclosure
2. defendant - thirty days after plaintiff's original disclosures
3. Rule 26(D)(3) completion of disclosure
1. whether by agreement pursuant to subsection 11.1(A) or the schedule set by 11.1(B) all expert disclosures shall be complete not later than 30 days after the date upon which plaintiff is or would be required to disclose contradictory or rebuttal evidence
4. Rule 26(D)(4) general provisions
1. who are plaintiffs:
1. counter-claim plaintiffs
2. cross claimants
3. third-party plaintiffs
2. interrogatories directed at expert for clarification of written reports disclosed pursuant to Fed. R. Civ. Proc. 26(a)(2) are due
1. fifteen days after date of service
2. see attached Local Rule 26(D); Fed. R. Civ. P. 26(a)(2); Fed. R. Evid. 702, 703 and 705.
3. Federal District Court for the Eastern District of Virginia
1. Rule 26(D) -- Expert Disclosures
1. The District Court for the Eastern District of Virginia Rule 26(D) expert disclosures incorporate the requirements of Fed. R. Civ. P. 26(a)(2). First, counsel is encouraged to agree to a consent order for the timing and sequence of all Fed. R. Civ. P. 26(a)(2) required disclosures. ⁽²⁰⁾ Those disclosures require the disclosing party the identity and contact information for the expert, a written report of the expert's testimony and basis for the testimony. ⁽²¹⁾
2. The timing of such disclosures shall be either by consent order or other court order. If neither of these is present the plaintiff shall disclose this information sixty (60) days before the earlier date of either the completion of discovery or the final pre-trial conference. The defense has thirty (30) days thereafter. Plaintiff then shall disclose solely contradictory or rebuttal evidence fifteen (15) days thereafter. ⁽²²⁾
3. Disclosure shall be completed not later then thirty (30) days after the date the plaintiff is or would be required to disclose contradictory or rebuttal evidence. ⁽²³⁾
4. For the purposes of this provision all counter-claim plaintiffs, cross-claimants and third-party plaintiffs shall be plaintiffs to all elements of their prospective claims. ⁽²⁴⁾
5. Answers to all interrogatories directed at clarification of the expert's written report shall be due fifteen (15) days after service. ⁽²⁵⁾
2. Virginia (ED) Rule 26(D) Expert Disclosure.
1. Agreement Upon Disclosure: Counsel are encouraged to agree upon the sequence and timing of the expert disclosures required by Fed. R. Civ. P. 26(a)(2). All such agreements must be in the form of a consent order entered by the Court.
2. Timing of the Mandatory Disclosure: Absent such a consent order or unless ordered otherwise, the disclosures required by Fed. R. Civ. P. 26(a)(2) shall be made first by the plaintiff not later then sixty (60) days before the earlier of the date set for completion of discovery or for the final pretrial conference, if any; then by the defendant thirty (30) days thereafter. Plaintiff shall disclose fifteen (15) days thereafter any evidence that is solely contradictory or rebuttal evidence to the defendant's disclosure.
3. Completion of Disclosure: Whether accomplished by agreement pursuant to subsection 11.1(A) or pursuant to the schedule set by subsection 11.1(B), all parties shall complete al forms of expert disclosure and discovery not later than thirty (30) days after the date upon which plaintiff is, or would be, required by subsection 11.1(B) to disclose contradictory or rebuttal evidence.
4. General Provisions: For purposes of this rule, counter-claim plaintiffs, cross-claimants and third-party plaintiffs shall be plaintiffs as to all elements of the counter-claim, cross-claim or third-party claim. Answers to interrogatories directed at clarification of the written reports of expert witnesses disclosed pursuant to Fed. R. Civ. P. 26(a)(2) shall be due fifteen (15) days after service.
4. Virginia Law
1. Common Law
1. Admissibility of expert testimony
1. Must not be within the range of common experience. ⁽²⁶⁾
2. Not admissible if members of the jury are competent to draw their own conclusions. ⁽²⁷⁾
3. Subject need not be related to science, art, or learned or technical profession. ⁽²⁸⁾
4. Expert need only have sufficient expertise in the field, however obtained, that the expert's opinion will be of benefit to jury. ⁽²⁹⁾
5. General test is whether expert testimony assists finder of fact in understanding the evidence. ⁽³⁰⁾
6. Testimony may not be speculative or founded upon assumptions that have an insufficient factual basis. ⁽³¹⁾
7. Questioning or contradiction of expert testimony has no bearing on admissibility. ⁽³²⁾
8. Admissibility is within the sound discretion of the trial judge. ⁽³³⁾
2. Expert testimony must be in form of opinion.
3. Commonwealth is not required to provide a defendant with a list of its expert witnesses.
4. An opponent of expert testimony need not wait until the evidence has been admitted to assert the challenge. He may raise the challenge prior to or at the trial. ⁽³⁴⁾
5. It is within the court's discretion to determine how many expert witnesses a party may call. ⁽³⁵⁾
6. Matters upon which expert testimony may be received include, but are not limited to
1. medical questions ⁽³⁶⁾;
2. valuation of a pension ⁽³⁷⁾;
3. valuation of a business enterprise ⁽³⁸⁾;
4. future dangerousness ⁽³⁹⁾;
5. life expectancy ⁽⁴⁰⁾; and
6. reasonableness of a defendant's fear of victim where self-defense is an issue. ⁽⁴¹⁾
7. Matters upon which expert testimony may sometimes, but not always, be received include
1. whether a person should have been hospitalized sooner ⁽⁴²⁾; and
2. accident reconstruction
1. While such testimony has sometimes been allowed, courts are highly reluctant to permit such testimony.
1. The basis for this reluctance is the pre-statute common law prohibition on opinion as to ultimate issues of fact. Since the relatively new statute allows such opinion on some occasions, it is possible that courts may become more tolerant of accident reconstruction testimony. ⁽⁴³⁾
2. It is improper for any witness, lay or expert, including police officers, to express a conclusion regarding a motor vehicle accident. ⁽⁴⁴⁾
2. Statutory Law - Virginia Code § 8.01-401.1 and § 8.01-401.3
1. Expert testimony is admissible if it will "assist the trier of fact to understand the evidence or to determine a fact in issue...." ⁽⁴⁵⁾
1. Is this a more liberal standard than the common law requirement that the matter not be one that is within common knowledge? Courts appear to be interpreting the statute as maintaining the common law standard
2. Statute eliminates requirement that expert testimony be in the form of an opinion. Therefore, expert witness need not testify as to his opinion about the present litigation and need not even be familiar with the facts in the present litigation. ⁽⁴⁶⁾
3. Definition of expert witness remains the same as common law -- Expert need only have sufficient expertise in the field, however obtained, that the expert's opinion will be of benefit to jury. ⁽⁴⁷⁾
3. Qualifications of Expert Witnesses
1. Qualifications must be established before expert may testify. ⁽⁴⁸⁾
1. Opposing party may stipulate. ⁽⁴⁹⁾
2. If opposing party does not stipulate, qualification must be shown and made part of the record. ⁽⁵⁰⁾
2. Decision as to qualification is within sound discretion of trial judge. ⁽⁵¹⁾
3. Statute and common law appear to be consistent regarding qualification of expert witnesses. ⁽⁵²⁾
1. There are no "degrees" of qualification. The witness will either be deemed qualified or not qualified. ⁽⁵³⁾
2. Witness need not be "highly" qualified. The witness must only be better qualified than the jury to form an inference from the facts. ⁽⁵⁴⁾
4. Being an expert in one field does not qualify a witness to testify on matters in another field or even in matters in another branch of his or her own field on which the witness may not have expertise. The expert's testimony must not exceed his or her knowledge or area of expertise. ⁽⁵⁵⁾
5. The fact that a witness considers himself or herself to be an expert is not dispositive of his or her qualification as an expert. ⁽⁵⁶⁾
6. An expert's competence should be established through voir dire. The court's failure to give a party the opportunity to establish its witness' credentials is reversible error. ⁽⁵⁷⁾
7. A party must object to the witness' qualifications at trial. If a party fails to do so at trial, an objection as to a witness' qualifications will not be noted on appeal. ⁽⁵⁸⁾
4. Basis of Expert Testimony
1. No matter how well qualified the expert may be, his or her testimony must be based upon a proper foundation. ⁽⁵⁹⁾
2. The expert's opinion may be based upon
1. Firsthand knowledge - data made known to or perceived by the witness at or before the hearing or trial; ⁽⁶⁰⁾
1. Includes hearsay sources if and only if they are of a type normally relied upon by experts in that field. ⁽⁶¹⁾
2. Applies only to civil cases - The Virginia Supreme Court has specifically declined to extend this rule to criminal cases.
2. Facts in evidence assumed in a hypothetical question; ⁽⁶²⁾
1. When the expert witness has no personal knowledge of the facts, he or she must render the opinion based upon information presented in hypothetical form. ⁽⁶³⁾
1. The use of a hypothetical question when a witness does have firsthand knowledge of the facts is considered harmless and is therefore not reversible error. ⁽⁶⁴⁾
2. The question must embody all of the material facts - i.e., all of the facts that the evidence tends to prove - affecting the question upon which the expert is asked to express an opinion. ⁽⁶⁵⁾
3. An opinion based upon a hypothetical incorporating incorrect or incomplete data is inadmissible. ⁽⁶⁶⁾
4. Objection to a hypothetical question must be prompt and specific. ⁽⁶⁷⁾
3. Testimony observed by the witness in the course of the trial; ⁽⁶⁸⁾
1. Statutory law allows one expert witness for each party to remain in the courtroom throughout the trial upon the request of all parties in civil cases. ⁽⁶⁹⁾
4. Exhibits admitted into evidence; ⁽⁷⁰⁾
5. The witness' prior experience.
3. The expert's opinion may not be based upon
1. Speculative, incorrect, or incomplete information; ⁽⁷¹⁾
2. Mere assumption which has no evidentiary support; ⁽⁷²⁾
3. Another opinion; ⁽⁷³⁾
4. An hypothesis raised by the expert's own testimony; ⁽⁷⁴⁾ or
5. Failure by the witness to consider all variables; ⁽⁷⁵⁾
6. An improper foundation - an assumption that is without foundation in the evidence; ⁽⁷⁶⁾
7. Facts not in evidence. ⁽⁷⁷⁾
1. However, when the expert relies on data customarily relied on and not used solely for the purpose of arriving at a specific opinion in the case, use of hearsay is not objectionable. ⁽⁷⁸⁾
4. The expert may give an opinion without first disclosing the underlying facts or data unless the court requires otherwise; however, the expert may be required to disclose the underlying facts or data on cross-examination. ⁽⁷⁹⁾
5. Treatises, periodicals, and pamphlets on a subject of history, medicine, or other arts and sciences established as a reliable authority by testimony or stipulation are not excludable as hearsay when relied upon by an expert witness. ⁽⁸⁰⁾
5. Expert Opinion on Ultimate Issue
1. Virginia courts are reluctant to permit expert witnesses to express an opinion upon the ultimate fact in issue. ⁽⁸¹⁾
2. Exceptions to the general prohibition on expert opinion on ultimate issue include
1. Medical witness opinion on cause of injury, illness, or death when the opinion:
1. is submitted with reference to "causative factors,"
2. is supported by evidence in the record,
3. is based upon personal examination or a proper hypothetical question, and
4. will help the jury; ⁽⁸²⁾
2. Standard of care in malpractice cases; ⁽⁸³⁾
3. Forensics (e.g., handwriting in forgery case); ⁽⁸⁴⁾
4. Damages; ⁽⁸⁵⁾
3. Counsel eliciting expert opinions on matters which are central to the case should be careful to avoid the use of legal terminology in framing questions so as to minimize the danger of running afoul of the "ultimate issue" prohibition.. (E.g., Counsel should use the phrase "forcibly attacked" rather than "rape.")
4. An expert witness may not comment as to the credibility of other witnesses. ⁽⁸⁶⁾
6. Weight of Expert Testimony
1. Expert testimony is given the same weight as that of other witnesses - to be determined by the trier of fact on a case-by-case basis. ⁽⁸⁷⁾
2. Expert testimony is not conclusive or binding on the trier of fact, whether jury or judge, even if uncontradicted. ⁽⁸⁸⁾
3. Expert opinion does not automatically override the opinion of lay witnesses. ⁽⁸⁹⁾
4. Disagreement among expert witnesses does not nullify the probative value of the testimony. It is for the trier of fact to determine what weight to accord the testimony of each expert. ⁽⁹⁰⁾
5. ETHICAL CONSIDERATIONS
1. The Virginia Rules of Professional Conduct (effective January 1, 2000) and Legal Ethics Opinions (LEOs) rendered by the Virginia State Bar provide little direct guidance regarding the cross-examination of expert witnesses. However, the practitioner who deals with expert witnesses should be cognizant of several relevant Rules and LEOs, which are summarized below:
1. RULE 1.6 Confidentiality of Information
1. A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client . . .
2. LEO # 1407 dealt with a law firm's representation of a doctor in two malpractice cases. The doctor later appeared as a witness for plaintiff in a case defended by another of the firm's lawyers. The doctor denied ever having been a defendant in a malpractice action, but the defense lawyer learned from one of his partners that the firm had earlier represented the doctor on two occasions. The Bar ruled that this information was a "secret" (although it could be obtained from public records) because it was gained in a professional relationship. The Bar therefore precluded continued representation of the client, since the lawyer could not effectively cross-examine the plaintiff's expert doctor (unless the doctor consented to disclosure of the confidential information about him).
3. RULE 3.3 Candor Toward The Tribunal
1. A lawyer shall not knowingly:
1. make a false statement of fact or law to a tribunal;
2. fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, subject to Rule 1.6;
3. fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel; or
4. offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
2. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
3. In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
4. A lawyer who receives information clearly establishing that a person other than a client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.
1. This Rule specifically prohibits misrepresentations, misleading legal arguments, offers of false evidence, and perjury. More generally, it stresses that, "[t]he advocate's task is to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate's duty of candor to the tribunal . . ." The advocate, always an officer of the court, must be careful to ensure that all dealings with expert witnesses are supportive of this tenet.
4. RULE 3.4 Fairness To Opposing Party And Counsel
1. A lawyer shall not:
1. Obstruct another party's access to evidence or alter, destroy or conceal a document or other material having potential evidentiary value for the purpose of obstructing a party's access to evidence. A lawyer shall not counsel or assist another person to do any such act.
2. Advise or cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein.
3. Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. But a lawyer may advance, guarantee, or pay:
1. Omitted
2. Omitted
3. a reasonable fee for the professional services of an expert witness.
4. Make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.
5. In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.
6. Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
1. the information is relevant in a pending civil matter;
2. the person in a civil matter is a relative or a current or former employee or other agent of a client; and
   
3. the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
4. Omitted
5. File a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.
   Comments 1 and 7 to these rules are particularly applicable to the just treatment of parties and witnesses, to include experts.
1. [1] The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.
1. Following this principal, LEO #1678 held that a lawyer (acting directly or through an expert witness) may not "advise the other party's expert witness not to testify," although the lawyer has no duty to take any measures in response to the lawyer's expert acting independently in convincing the opposing expert not to testify (unless the "tampering" is a "fraud on the tribunal" or the lawyer hired the expert "merely to harass or maliciously injure plaintiff by subverting plaintiff's employment" of an expert, which did not occur here).
2. [7] In the exercise of professional judgment on those decisions which are for the lawyer's determination in the handling of a legal matter, a lawyer should always act in a manner consistent with the best interests of a client. However, when an action in the best interest of a client seems to the lawyer to be unjust, the lawyer may ask the client for permission to forego such action. The duty of lawyer to represent a client with zeal does not militate against his concurrent obligation to treat, with consideration, all persona involved in the legal process and to avoid the infliction of needless harm. Under this Rule, it would be improper to ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade any witness or other person.
5. RULE 4.4 Respect For Rights Of Third Persons
1. In representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
2. This Rule is clearly applicable to all advocacy activities. The comment to this Rule states that, "[r]esponsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons. The Committee adopted this Rule as a reminder that there is some limitation placed upon activities for which "zealous representation" might be offered as an excuse.
6. Federal Rules of Evidence Pertaining to Expert Witnesses
1. Federal Rules Criminal Procedure 26(a)(1) and (a)(2).

(a) Required Disclosures; Methods to Discover Additional Matter.

(1) Initial Disclosures.

Except to the extent otherwise stipulated or directed by order or local rule, a party shall, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying the subjects of the information;

(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings;

(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and

(D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Unless otherwise stipulated or directed by the court, these disclosures shall be made at or within 10 days after the meeting of the parties under subdivision (f). A party shall make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness.

The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).

1. Federal Rules of Evidence 702, 703, 705 (including notes).

RULE 702. TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

NOTES TO RULE 702

HISTORY: (Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1937.)

Notes of Advisory Committee on Rules.

An intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge. The most common source of this knowledge is the expert witness, although there are other techniques for supplying it.

Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference. The use of opinions is not abolished by the rule, however. It will continue to be permissible for the experts to take the further step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts. See Rules 703 to 705 .

Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. "There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952). When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. 7 Wigmore § 1918.

The rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the "scientific" and "technical" but extend to all "specialized" knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by "knowledge, skill, experience, training or education." Thus within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called "skilled" witnesses, such as bankers or landowners testifying to land values.

Preliminary draft of proposed amendments.

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States proposed the following amendment of Rule 702, dated August 15, 1991:

Testimony providing scientific, technical, or other specialized information, in the form of an opinion or otherwise, may be permitted only if (1) the information is reasonably reliable and will substantially assist the trier of fact to understand the evidence or to determine a fact in issue and (2) the witness is qualified as an expert by knowledge, skill, experience, training, or education to provide such testimony. Except with leave of court for good cause shown, the witness shall not testify on direct examination in any civil action to any opinion or inference, or reason or basis therefor, that has not been seasonably disclosed as required by Rules 26(a)(2) and 26(e)(1) of the Federal Rules of Civil Procedure.

Committee notes.

This revision is intended to limit the use, but increase the utility and reliability, of party-initiated opinion testimony bearing on scientific and technical issues.

The use of such testimony has greatly increased since enactment of the Federal Rules of Evidence. This result was intended by the drafters of the rule, who were responding to concerns that the restraints previously imposed on expert testimony were artificial and an impediment to the illumination of technical issues in dispute. See, e.g., McCormick on Evidence , § 203(3d ed., 1984). While much expert testimony now presented is illuminating and useful, much is not. Virtually all is expensive, if not to the proponent then to adversaries. Particularly in civil litigation with high financial stakes, large expenditures for marginally useful expert testimony has become commonplace. Procurement of expert testimony is occasionally used as a trial technique to wear down adversaries. In short, while testimony from experts may be desirable if not crucial in many cases, excesses cannot be doubted and should be curtailed.

While concern for the quality and even integrity of hired testimony is not new, Winans v. New York & Erie R.R., 62 U.S. 88, 101 (1858); Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40 (1901), the hazards to the judicial process have increased as more technical evidence is presented:

When the evidence relates to highly technical matters and each side has shopped for experts favorable to its position, it is naive to expect the jury to be capable of assessing the validity of dramatically opposed testimony.

3J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE, § 706[01] at 706-07(1985).

While the admissibility of such evidence is, and remains, subject to the general principles of Rule 403 , the revision requires that expert testimony be "reasonably reliable" and "substantially assist" the fact-finder. The rule does not mandate a return to the strictures of Frye v. United States, 293 F.2d 1013 (D.C. Cir., 1923) (requiring general acceptance of the scientific premises on which the testimony is based). However, the court is called upon to reject testimony that is based upon premises lacking any significant support and acceptance within the scientific community, or that otherwise would be only marginally helpful to the fact-finder. In civil cases the court is authorized and expected under revised Rule 26(c)(4) of the Federal Rules of Civil Procedure to impose in advance of trial appropriate restrictions on the use of expert testimony. In exercising this responsibility, the court should not only consider the potential admissibility of the testimony under Rule 702 but also weigh the need and utility of the testimony against the time and expense involved.

In deciding whether the opinion evidence is reasonably reliable and will substantially assist the trier of fact, as well as in deciding whether the proposed witness has sufficient expertise to express such opinions, the court, as under present Rule 702, is governed by Rule 104(a) .

The rule is also revised to complement changes in the Federal Rules of Civil Procedure requiring pretrial disclosure of the expert testimony to be presented at trial. The rule precludes the offering on direct examination in civil actions of expert opinions, or the reasons or bases for opinions, that have not been adequately and timely disclosed in advance of trial. It has not been unusual for the testimony given at trial by an expert to vary substantially from that provided under former Fed. R. Civ. P. 26(b)(4)(A)(i) or at a deposition of the expert. At a minimum, any significant

changes in an expert's expected testimony should be disclosed before trial, and this revision of Rule 702 provides an appropriate incentive for such disclosure in addition to those contained in the Rules of Civil Procedure.

Additions or other changes to an expert's opinions must, under Fed. R. Civ. P. 26(e)(1), be disclosed no later than the time the proponent is required to disclose its witnesses and exhibits that are to be used at trial. Unless the court has specified another time, these revisions must be disclosed at least 30 days before trial.

Of course, a witness should not be required to testify contrary to the person's oath or affirmation. If the witness is unable, consistent with the oath or affirmation, to testify in a manner consistent with the earlier disclosure, then--unless the court grants leave to deviate from the earlier testimony--the witness should not testify.

By its terms the new sentence applies only in civil cases. The consequences of the failure to make disclosures of expert testimony which may be required under new Fed. R. Crim. P. 16(a)(1)(E) and 16(b)(1)(C) will be determined in accordance with the principles that govern enforcement of the requirements of Fed. R. Crim. P. 16.

RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

NOTES TO RULE 703

HISTORY: (Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1937; Mar. 2, 1987, eff. Oct. 1, 1987.)

Notes of Advisory Committee on Rules.

Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources.

The first is the firsthand observation of the witness, with opinions based thereon traditionally allowed. A treating physician affords an example. Rheingold, The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 489 (1962).

Whether he must first relate his observations is treated in Rule 705 . The second source, presentation at the trial, also reflects existing practice. The technique may be the familiar hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. Problems of determining what testimony the expert relied upon, when the latter technique is employed and the testimony is in conflict, may be resolved by resort to Rule 705 .

The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes. Rheingold, supra, at 531; McCormick § 15. A similar provision is California Evidence Code § 801(b).

The rule also offers a more satisfactory basis for ruling upon the admissibility of public opinion poll evidence.

Attention is directed to the validity of the techniques employed rather than to relatively fruitless inquiries whether hearsay is involved. See Judge Feinberg's careful analysis in Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp.

670 (S.D.N.Y. 1963) See also Blum et al, The Art of Opinion Research: A Lawyer's Appraisal of an Emerging Service, 24 U.Chi.L.Rev. 1 (1956); Bonynge, Trademark Surveys and Techniques and Their Use in Litigation, 48

A.B.A.J. 329 (1962); Zeisel, The Uniqueness of Survey Evidence, 45 Cornell L.Q. 322 (1960); Annot., 76 A.L.R.2d 919.

If it be feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the rule requires that the facts or data "be of a type reasonably relied upon by experts in the particular field." The language would not warrant admitting in evidence the opinion of an "accidentologist" as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied.

See Comment, Cal.Law Rev.Comm'n, Recommendation Proposing an Evidence Code 148-150 (1965).

Notes of Advisory Committee on 1987 amendments to Rules.

The amendment is technical. No substantive change is intended.

RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

NOTES TO RULE 705

HISTORY: (Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1938; Mar. 2, 1987, eff. Oct. 1, 1987.) (Amended Dec. 1, 1993.)

Notes of Advisory Committee on Rules.

The hypothetical question has been the target of a great deal of criticism as encouraging partisan bias, affording an opportunity for summing up in the middle of the case, and as complex and time consuming. Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 426-427 (1952). While the rule allows counsel to make disclosure of the underlying facts or data as a preliminary to the giving of an expert opinion, if he chooses, the instances in which he is required to do so are reduced. This is true whether the expert bases his opinion on data furnished him at secondhand or observed by him at firsthand.

The elimination of the requirement of preliminary disclosure at the trial of underlying facts or data has a long background of support. In 1937 the Commissioners on Uniform State Laws incorporated a provision to this effect in the Model Expert Testimony Act, which furnished the basis for Uniform Rules 57 and 58. Rule 4515, N.Y. CPLR

(McKinney 1963), provides: "Unless the court orders otherwise, questions calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data upon which it is based.

Upon cross-examination, he may be required to specify the data . . .,".

See also California Evidence Code § 802; Kansas Code of Civil Procedure §§ 60-456, 60-457; New Jersey

Evidence Rules 57, 58.

If the objection is made that leaving it to the cross-examiner to bring out the supporting data is essentially unfair, the answer is that he is under no compulsion to bring out any facts or data except those unfavorable to the opinion. The answer assumes that the cross-examiner has the advance knowledge which is essential for effective cross-examination. This advance knowledge has been afforded, though imperfectly, by the traditional foundation requirement. Rule 26(b)(4) of the Rules of Civil Procedure, as revised, provides for substantial discovery in this area, obviating in large measure the obstacles which have been raised in some instances to discovery of findings, underlying data, and even the identity of the experts. Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan.L.Rev. 455 (1962).

These safeguards are reinforced by the discretionary power of the judge to require preliminary disclosure in any event.

Notes of Advisory Committee on 1987 amendments to Rules.

The amendment is technical. No substantive change is intended.

Notes of Advisory Committee on 1993 amendments to Rules.

This rule, which relates to the manner of presenting testimony at trial, is revised to avoid an arguable conflict with revised Rules 26(a)(2)(B) and 26(a)(1) of the Federal Rules of Civil Procedure or with revised Rule 16 of the Federal Rules of Criminal Procedure, which require disclosure in advance of trial of the basis and reasons for an expert's opinions.

If a serious question is raised under Rule 702 or 703 as to the admissibility of expert testimony, disclosure of the underlying facts or data on which opinions are based may, of course, be needed by the court before deciding whether, and to what extent, the person should be allowed to testify. This rule does not preclude such an inquiry.

Part 2 - Articles on Ethics

12 Geo. J. Legal Ethics 465

Georgetown Journal of Legal Ethics

Spring, 1999

*465 EXPERT WITNESSES: ETHICS AND PROFESSIONALISM

Steven Lubet [FNa1]

Copyright © 1999 Georgetown Journal of Legal Ethics; Steven Lubet

INTRODUCTION

This Article surveys the undeveloped field of expert witness ethics and professionalism. It is common in modern litigation to call individuals from a vast array of professions to testify as expert witnesses. [FN1] Experts may be retained in commercial cases to interpret complex financial data, [FN2] in tort cases to explain the nature of injuries, [FN3] or in criminal cases to translate underworld "gang codes" into everyday language. [FN4] Properly qualified, an expert can be asked to peer into the past, as when an accident reconstructionist re-creates the scene of an automobile collision. Other experts may predict the future, as when an economist projects the expected life earnings of a deceased plaintiff in a wrongful death case. One recent survey of California civil jury trials determined that at least one expert testified in eight-six percent of all cases, with two or more opposing experts testifying in fifty-seven percent of the trials. [FN5]

What are expert witnesses' ethical obligations? This Article will attempt to provide some answers by addressing the interrelated concepts of "professional ethics" and "professionalism." The term "professional ethics" typically refers to the distinct, mandatory responsibilities undertaken by individuals in the course of practicing a trade or calling. Breaches of professional ethics may result in discipline, fee forfeiture, or other adverse consequences. In contrast, the term "professionalism" is often used to identify admirable, model, or ideal conduct *466 that is generally expected within a given profession--but not absolutely required.

For example, professional ethics compel a physician to maintain a patient's confidences; [FN6] violating confidences may result in censure or worse. A sense of professionalism entails courtesy, clear communication, and punctuality; abandoning these standards may result in a loss of confidence or respect. The two concepts are not wholly distinct. Both are aspirational. Most professionals certainly do not adhere to ethical standards simply as a means of avoiding discipline or liability.

Many professional obligations are identical to personal ethics or moral standards. Outright lying, for example, would commonly be understood as both a moral fault and a violation of professional standards. In many circumstances, however, professional ethics may be quite different from personal ethics. While most citizens believe it their duty to report crimes, lawyers usually must maintain confidences even when the clients have revealed serious criminal behavior. [FN7] Conversely, physicians and social workers, among others, are expected to contact the authorities in cases of suspected child abuse, even in fairly minor situations where ordinary citizens might be justified in remaining uninvolved. [FN8] The comparison of personal and professional ethics is sometimes referred to as "role differentiation," because ethical requirements vary according to the role one has assumed. [FN9]

Of course, all expert witnesses are governed by personal ethics, and all must obey the rules of the courts in which they appear. Still, there is no single source that we can look to for a definitive statement of expert witnesses' professional *467 ethics. A few organizations have attempted to draft codes of conduct for expert witnesses, [FN10] but none have achieved broad acceptance.

Experts may be drawn from virtually any field or calling, from aviation to zoology. In some cases the expert's own profession may have a well developed code of ethics, as with accounting, [FN11] medicine, [FN12] law, [FN13] and psychotherapy. [FN14] Such experts certainly must adhere to the standards of their own fields concerning matters such as confidentiality and conflicts of interest. They may even be subject to professional regulation or discipline for their conduct as witnesses.

Other professions are unlicensed or unregulated. A musician or composer, for example, might be called as a witness in a copyright case; economists are frequently called to testify in antitrust or tort cases. Neither profession has promulgated a code of ethics, and there are no generally recognized standards governing their conduct in forensic matters. The same is true of "human factors" experts, demographers, political scientists, penologists, journalists, and many others who are frequently called upon to testify in court.

The absence of an enacted code of conduct does not at all imply an absence of content-related professional standards. Academic and industrial scientists, for example, are expected to adhere to strict requirements of objectivity and to follow precise methods of investigation.

This Article deals with the topic of "role differentiated" ethics for expert witnesses. It covers questions that may not arise, or that may arise differentially, in the course of the expert's ordinary, non-forensic work. Specifically, this Article will explore the issues of independence, confidentiality, conflicts of interest, fees, and conduct during trial and discovery.

I. INDEPENDENCE AND OBJECTIVITY

The single most important obligation of an expert witness is to approach every question with independence and objectivity. Expert testimony is only allowed if the expert's "specialized knowledge will assist the trier of fact to understand the evidence." [FN15] The expert's opinion, in turn, cannot assist the fact finder's understanding unless that opinion is candidly and frankly based upon the witness's own investigation, research, and understanding.

An objective expert views the facts and data dispassionately, without regard to the consequences for the client. An independent expert is not affected by the goals *468 of the party for which she was retained, and is not reticent to arrive at an opinion that fails to support the client's legal position.

A. COPING WITH LAWYERS

It will probably come as no surprise that there are lawyers who will attempt to influence the content of an expert's testimony. [FN16] After all, advocates want to retain experts for one reason only: to help win the case. Given the effort and expense involved, some lawyers will be tempted to see the expert as simply another member of the litigation team. While expert witnesses will obviously have to work closely with the lawyers who engage them, it is important to maintain a sharp distinction between their roles.

As an advocate in the adversary system, it is a lawyer's job to make the best possible argument in support of her client. A lawyer will often find herself advancing a position in the hope that it will work, without necessarily believing that the view is correct. Lawyers do not testify under oath. While they must be truthful concerning facts and accurate in their representations about the content of the law, [FN17] their opinions and arguments must always be adapted to the needs of their clients. In the classic formulation of the advocate's duty, Boswell reported that Samuel Johnson did not hesitate to raise arguments that he knew to be weak, saying, "... you do not know it to be good or bad till the judge determines it.... An argument which does not convince yourself, may convince the judge to whom you urge it: and if it does convince him, why, then Sir, you are wrong and he is right." [FN18]

Experts, however, have no such latitude. As a witness testifying under oath, an expert is not entitled to state a position "which does not convince yourself" in the hope that it may convince the judge or jury. The entire system of expert testimony rests upon the assumption that expert witnesses are independent of retaining counsel, and that they testify sincerely.

Most lawyers understand and accept this on an intellectual level. Still, in the heat of adversary battle, it is not unknown for lawyers to seek to "extend" or "expand" an expert's opinion in just the right direction. This is wrong. It is no more acceptable for a lawyer to attempt to persuade an expert to alter her opinion than it would be to convince an eyewitness to change his account of the facts.

*469 B. WORKING WITH LAWYERS

The need for independence and objectivity does not prevent experts from working closely with the lawyers who retain them. Litigation is a complex process, and it is important that attorneys be able to communicate with the experts working on the case. The lawyers will invariably have important information, and perhaps suggestions, that will facilitate the experts' work. Lawyers may also need constant input from the experts as the case proceeds, so that they may adjust their goals and strategies in light of the experts' findings.

It is entirely legitimate for expert witnesses to cooperate closely with retaining counsel, so long as the relationship remains independent and professional roles are not blurred.

1. Information and Assumptions

To one degree or another, all experts depend upon retaining counsel for the information necessary to do their work. At a minimum, the attorney will have to provide the expert with an explanation of the case, a description of the questions to be addressed by the expert, and the documents or other sources necessary to the expert's assignment. This will ordinarily be an interactive process, with the expert and the lawyer exchanging questions and information.

In many cases the lawyer will also have to inform the expert of the precise legal standard that must be addressed. Of course, some scientific or technical questions may seem purely descriptive: What is the composition of a chemical compound? What caused a stress fracture? What is the standard maintenance schedule for the mechanical part in question? But, even in these situations, the expert may need to be aware of certain legal standards. The test for admissibility of an expert's opinion may vary from state to state. Thus, it is essential that the expert be aware of the relevant test followed in the particular jurisdiction. [FN19] This information can only come from retaining counsel. Moreover, it is certainly permissible for the expert to work with the attorney in order to make sure that her opinion is formed in a manner that will be admissible in court.

In other circumstances there may be legal rules that govern the necessary content of the expert's opinion. A psychologist, for example, may need to *470 understand a jurisdiction's legal test for insanity. It is entirely proper for the expert to obtain direction on such matters from the retaining attorneys.

An expert's opinion will often be dependent or contingent upon facts that must be provided by other witnesses. Such facts may or may not be readily accessible, and they will sometimes be hotly disputed between the parties. Counsel may therefore ask the witness to "assume" certain facts, rather than have the witness undertake an independent investigation. This is an appropriate way to proceed, so long as the assumptions are reasonable and clearly identified.

Conversely, not every fact in a case will eventually be allowed into evidence at trial. A lawyer may therefore ask an expert to disregard certain information, on the theory that it is legally irrelevant or inadmissible. An expert may ethically comply with such a request, since the admissibility of evidence is not within the witness' purview.

For example, suppose that an economist has been retained by the defendant in a "wrongful discharge from employment" case. The expert's task is to determine the plaintiff's damages in the event that liability is established. Depending upon the jurisdiction, the elements of such a damage claim might possibly include back pay, future pay, and increments due to imputed promotions. A competent economist could calculate damages in all three categories, but would have no way of knowing which ones would be recognized by the court. Thus, the witness may rely on directions from counsel in determining which components to consider.

2. Suggestions and Questions

In addition to providing information and assumptions, a lawyer may also make suggestions to, or ask questions of, the retained expert. When done properly, this is simply part of the intellectual exchange between two professionals. There may be evident gaps in the expert's analysis, or the reasoning may not appear to support clearly the conclusions. The expert may not have adverted to all of the relevant factors. It is fair and appropriate for the lawyer to ask the expert to reconsider a conclusion in light of additional information. The retaining lawyer may ask pointed questions to make sure that the expert's position is thorough and valid. The attorney may suggest ways in which the opinion could be strengthened or supported.

On the other hand, it is unacceptable for a lawyer to attempt to pressure a witness into changing her opinion. A lawyer must ultimately be willing to take the bad news with the good, and to realize that an expert's opinion may be unfavorable to, or not fully supportive of, the client's position.

A lawyer with integrity will normally accept a negative opinion, or even appreciate it, since that may help counsel and client formulate a settlement strategy rather than take a losing case to trial.

*471 3. Trial Preparation

It is not unethical for a lawyer to assist an expert to prepare for trial or deposition. Counsel may inform the witness of the questions to be asked on direct examination, and may alert the witness to potential cross-examination. The lawyer may describe the deposition process to the witness and caution the expert about the risks of volubility. Counsel may likewise tell the witness if her answers seem confusing, unclear, or misleading, or if they are likely to be misinterpreted or misconstrued. An expert may be advised to use powerful language, to avoid jargon, to use analogies, to refrain from long narratives, or to use other means that will help her convey her opinion accurately.

Needless to say, a lawyer absolutely may not instruct a witness how to testify. [FN20]

4. Scope of Expertise

It is not unknown for an attorney to try to stretch a witness's expertise, either as a cost saving measure or in an effort to broaden the impact of the testimony. For counsel, the engagement of expert witnesses can be time consuming and expensive, therefore there is a natural impulse to see if the witness can do "double duty."

The situation is usually resolved simply by an appropriate inquiry. Either the witness is legitimately able to opine on the subject, in which case the engagement proceeds on that basis, or the witness lacks the necessary skills or qualification, in which case the subject is dropped.

More troubling is the possibility that some lawyers might try to induce or inveigle an expert to offer opinions that are truly beyond the scope of her expertise. Such testimony, if given, puts the witness out on a limb that may be sawed off during cross-examination. [FN21] Tactics aside, experts must be both qualified and independent. It is therefore unethical for a lawyer to tamper with the independence of an expert's views by attempting to persuade her to exaggerate her qualifications to give opinions outside her expertise.

Honorable experts will not allow attorneys to overstate the scope of their opinions, and honorable counsel will respect this position.

II. CONFIDENTIALITY

Professional obligations of confidentiality are well recognized. Lawyers, physicians, psychotherapists, clergy, and accountantsall operate under various duties of secrecy. It is important for professionals acting as expert witnesses to *472 understand that these duties generally do not apply in situations where they have been retained for the purpose of testifying in court. [FN22]

Notwithstanding the usually privileged nature of their professional communications, expert witnesses may be expected, and even compelled, to reveal conversations that would otherwise be inviolate. The reason for this distinction should be obvious. Forensic evaluation and testimony do not fall within the ordinary practice of most professions. Communications made to a retained witness, for the purpose of facilitating testimony in court, do not fall within the "zone of privacy" necessary for the invocation of an evidentiary privilege. [FN23] Of course, many professionals--engineers, architects, economists, chemists, and others--do not ordinarily enjoy a privilege of confidentiality. Consequently, expert witnesses should assume that all of their communications, with either the client or retaining counsel, may be subject to disclosure through the process of discovery. Additionally, the witness' research files, work papers, notes, drafts, correspondence, and similar materials may have to be revealed to the attorneys for opposing parties. [FN24] In some jurisdictions it is possible that some items may be protected from discovery, but prudence dictates that the witness presume that her entire file will be an open book.

This is not to say, however, that the expert has no obligations of confidentiality to the client. Even in the absence of a separate ethical duty, principles of agency law require that an expert take reasonable steps to safeguard client confidences, [FN25] and refrain from using confidential information for self-enrichment [FN26] or other improper purposes. [FN27]

*473 One recurrent issue involves the efforts of lawyers to contact opposing expert witnesses outside the processes of formal discovery. [FN28] Several courts have held that access to experts is limited by the discovery rules, and that all interviews must take place via deposition. [FN29] In a few jurisdictions, however, extramural interviews have been found permissible. [FN30] But even in jurisdictions where the lawyer is permitted to contact the expert, there is no obligation that the expert respond. Most experts would consider it unprofessional, at the very least, to hold ex parte discussions with opposing counsel in the absence of notice to the retaining lawyer. At the extreme, unauthorized contact with an adverse party's expert may be considered witness tampering, perhaps leading to disqualification of the lawyer or witness, or other sanctions. [FN31]

Because of the complex interplay among professional ethics standards, rules of evidence, discovery, and other law, it is best to clarify expectations of confidentiality at the outset of every engagement. According to the ABA Standing Committee on Professional Conduct, a retention letter "should define the relationship, including its scope and limitations, and should outline the responsibilities *474 of the testifying expert, especially regarding the disclosure of client confidences." [FN32]

III. LOYALTY AND CONFLICTS OF INTEREST

For expert witnesses, issues of loyalty and conflicts of interest raise two different questions. First, if asked to opine in two unrelated cases, may a witness accept concurrent engagements for and against the same party or law firm? Second, may an expert switch sides in litigation?

A. UNRELATED ENGAGEMENTS

It is a well established rule of legal ethics that alawyer may not engage in representation "directly averse" to a current client. [FN33] Thus, even in completely unrelated cases, a lawyer may not simultaneously sue and defend the same party. [FN34] This rule is based upon the principle of attorney loyalty, which must never be diluted by undertaking obligations to adverse parties.

Expert witnesses, on the other hand, do not owe that sort of loyalty to their clients. An expert is not the client's "champion," pledged faithfully to seek the client's goals. Indeed, in many ways the expert's role is precisely the opposite. She must remain independent of the client and detached, if not wholly aloof, from the client's goals. [FN35] There is no reason that an objective expert could not conclude--and explain--that a party is correct in one case and wrong in another. Consequently, there is no general ethical principle that prevents an expert from accepting concurrent engagements both for and adverse to the same party. [FN36]

By the same token, it follows that an expert may concurrently work with and against a lawyer or law firm, testifying for the law firm's client in one case and against the firm in another. Since there is no rule against accepting concurrent adverse engagements, there is also no general restriction on testifying adversely to a former client or against a law firm that previously retained the expert.

The expert's freedom of action, however, is not absolute. As noted in the previous section, the law of agency imposes an obligation to refrain from exploiting a client's confidences for the benefit of another. [FN37] Thus, an expert should not accept conflicting engagements, either concurrently or successively, *475 that are factually related, since this could risk exploitation or betrayal of a client's confidences. [FN38]

There is a further constraint on the acceptance of engagements, though it is difficult to quantify. It will surely cause a law firm or client great discomfort to see their expert turn up on the opposite side of another lawsuit. Though the matters may be unrelated, posing no threat to client confidences, the expert's dual position places counsel in the troublesome position of having to extol the expert's opinion in one case while attacking it in another. Needless to say, most lawyers would find this situation damaging to the expert's credibility in case one, damaging to the client's position in case two, or both. No doubt, the retaining lawyer would prefer to avoid this dilemma if possible, even if there is no ethical bar to the expert's actions.

As a matter of courtesy and professionalism, it is best to resolve this issue at the outset of every case. A lawyer may reasonably request that the expert refrain from accepting potentially adverse engagements, at least for the duration of the retention. The expert may accept or decline the proposed restriction, or may suggest other terms. The absence of an ethics rule does not prevent the attorney and expert from negotiating a mutually agreeable resolution to what could perhaps become a sticky problem. In any event, a forthright discussion of terms and conditions can prevent the development of an awkward situation down the road.

B. SWITCHING SIDES

Imagine that an expert has been retained by the plaintiff in a lawsuit. The expert conducts her research and arrives at an opinion that is quite unfavorable to the plaintiff, who then discharges the witness. May the expert subsequently testify for the defendant, whose position is supported by the expert's work?

There is no per se rule that prohibits an expert witness from switching sides in a lawsuit. Since the expert's job is to arrive at an independent opinion, it cannot be disloyal for the witness to begin working for one party and end up working for the other. On a case by case basis, however, considerations of confidentiality and privilege will often operate to prevent an expert from switching sides. [FN39]

The answer to the question will ultimately depend upon the nature and extent *476 of the relationship between the expert and the original client. In brief, an expert may not switch sides, even following discharge or release, if that would violate the original client's reasonable expectation of confidentiality. [FN40] This in turn will depend on a number of factors. How extensive was the communication between the expert and the client or the client's counsel? Was the expert provided with non-public or privileged information? Did the expert participate in strategy discussions with counsel, or otherwise learn of the client's decision-making strategy?

While the courts have used a variety of tests to weigh these factors, it is fair to say that the touchstone has invariably been access to confidential information. [FN41] Hence, an expert who only participated in a short preliminary discussion with one attorney would be free to accept retention from the other side. [FN42] Conversely, an expert who had performed an extensive fact investigation, working closely with counsel, would more likely be barred from switching sides. [FN43]

A further distinction should be made between a witness who is discharged (or who initially declined an engagement) and a witness who defects. There are few cases dealing with this phenomenon, no doubt because it seldom concerns. Nonetheless, a witness who deliberately sets out to switch sides, or who is lured away by opposing counsel, may well find herself disqualified from testifying in the case. Not only is such a witness likely to have compromised confidences, but a defecting witness also creates the appearance of chicanery. A court may bar the witness on the ground that her conduct (or counsel's) has been "prejudicial to the administration of justice."

Again, most difficulties can be avoided if there is frank discussion at the outset *477 of the engagement. A well-drafted retention letter will spell out the expert's duties and the client's expectations concerning confidential information, as well as the expert's options in the event of discharge or release. [FN44]

IV. FEES

Unlike other witnesses who can be reimbursed for only expenses, an expert may be paid a fee for preparing and testifying in court. [FN45] A variety of ethics issues arise in the context of experts' possible fee arrangements, including contingency fees, fee structures other than hourly billing, and non- refundable fees.

A. CONTINGENCY FEES

It is considered unethical in virtually every jurisdiction to pay an expert witness a contingency fee, [FN46] meaning a fee that is "contingent upon the content of [the] testimony or the outcome of the case." [FN47] Such fees are prohibited because they create an unacceptable incentive for the expert to tailor her opinion to the needs or interests of the retaining party. In other words, the expert's independence and objectivity become impaired when payment hinges on the success of the litigation.

A similar though not identical problem may be raised by other fee structures. Consider, for example, the practice of "value billing," which has increasingly been used by lawyers and consultants. [FN48] In value billing, the fee is eventually determined by the value or benefit conferred by the work, rather than by the number of hours devoted to the task. For expert witnesses, however, value billing can come uncomfortably close to charging on the basis of the content of the testimony.

*478 For example, imagine that an expert follows a policy of rebating or returning fees in the event that her opinion cannot be used by the retaining party. While the expert might justify this approach as an effort to avoid excessive billing for unproductive work, it clearly results in additional compensation when the expert's opinion is favorable to the client. The same result occurs when the expert's hourly rate is adjusted (up or down) following the initial research or evaluation.

In order to avoid any suggestion of a "contingency," most experts bill at a constant hourly rate. [FN49] Of course, even in these circumstances, a favorable initial evaluation may presumably lead to further hours spent on preparation, deposition, and perhaps trial testimony. While this additional work will obviously result in greater total compensation, it is not considered a contingent fee.

B. FLAT FEES, MINIMUMS, AND ADVANCES

In addition to hourly billing, other fee structures may include or combine flat fees, minimums, or retainers. Unless they are excessive, none of these devices present ethical problems.

A flat fee compensates the expert in a set amount for all, or some defined portion, of the work. For example, a flat fee could cover the entire engagement all the way through testimony at trial, or it could be determined in stages--perhaps one amount for the initial research and work-up, another if a written report becomes necessary, and a final amount for deposition and trial time. A minimum fee, usually used in conjunction with an hourly rate, ensures that the expert will be compensated at a certain level regardless of the amount of work ultimately involved in the case. An advance, sometimes also called a retainer, provides the witness with some or all of her payment at the outset of the engagement, rather than billing exclusively as work is performed.

To one degree or another, each of these fee structures provides additional security to the expert. In that sense, minimums, flat fees, and advances may be seen as the "flip side" of contingent fees. In each case, guaranteed payment becomes entirely disengaged from the content of the expert's opinion.

C. LOCK-UP FEES

Some expert witnesses insist upon the payment of a nonrefundable "lock-up" fee at the outset of every engagement. The amount may be small or large, but in either case the purpose of the fee is to compensate the witness for agreeing to forego retention by the other parties in the litigation.

*479 As noted earlier, an expert who has received significant confidences from one party may not thereafter accept retention by the other side. [FN50] Thus, there is some financial risk, especially in the case of a prominent individual, when an expert agrees to begin working on a case. It may be only a few hours until the expert reaches an opinion adverse to the retaining client, yet the expert might then be precluded from doing further work, and billing numerous hours, for another party in the litigation. The lock-up fee resolves this dilemma by, in essence, providing the expert with a "signing bonus" in exchange for agreeing to work exclusively with one client in the matter.

When received by lawyers, particularly in criminal and divorce cases, nonrefundable retainers have been criticized as oppressive and exploitative. [FN51] A number of jurisdictions have either banned or sharply curtailed their use by attorneys. [FN52]

In this regard, however, expert witnesses do not operate under the same restraints as lawyers. The chief objection to the attorney's nonrefundable retainer is that the forfeiture of the retainer creates a defacto impediment to firing the lawyer. In turn, this chills the client's unfettered right to discharge counsel at any time without cost or penalty. But the same considerations do not apply to experts. To be sure, the client is always free to fire an expert witness, but no comparable public policy is served by ensuring that there is no financial loss to the client who does so. [FN53] Consequently, lock-up fees should not be considered unethical when used by expert witnesses.

V. DISCOVERY

Discovery is the formal process by which lawyers are able to gain facts and information about the opposing party's case. A number of ethics issues also arise out of the discovery process, including communicating with adverse counsel, production of documents, and behavior during depositions.

*480 A. COMMUNICATING WITH ADVERSE COUNSEL

The Federal Rules of Civil Procedure, and the corresponding provisions in most states, place limits on the right of a lawyer to contact opposing counsel's experts. In brief, experts are divided into two categories: those who have been identified as "testifying experts"; and those who have been consulted but who have not (or not yet) been listed as witnesses. The later group of experts are sometimes called either "consulting experts" or "non-testifying experts." Although there are limited exceptions, only testifying experts are broadly subject to discovery. Purely consulting experts, other than in extreme circumstances, are exempt from discovery. [FN54]

As noted above, [FN55] an enterprising lawyer may occasionally seek an extracurricular interview with the opposing party's expert. Although the courts are somewhat divided on the propriety of this tactic, the majority view is that such contacts are prohibited in the case of both testifying and non-testifying experts.

While the discovery rules probably do not constrain the witnesses themselves, agency principles require reasonable steps to maintain a client's confidences. A responsible expert, therefore, should notify retaining counsel in the event that she is approached for substantive information by the attorney for an adverse party.

B. PRODUCTION OF DOCUMENTS

As we have seen, a testifying expert's entire file will usually be subject to full disclosure to the adverse party. On the other hand, a non-testifying expert's materials are only discoverable under very unusual circumstances. Of course, discoverability is a legal question, to be resolved by the lawyers and court. Experts are neither expected nor allowed to decide on their own which materials should and should not be disclosed.

Discovery requests to experts are channeled through retaining counsel. Typically, the attorney will ask the expert for a described set of materials (perhaps "everything") and the expert will either copy the materials or turn over the originals. The lawyer will then decide which items must be produced to the other side. In some situations, especially in criminal cases, materials may be sought directly from the witness via subpoena.

It is unethical, and perhaps even criminal, to conceal or destroy material that has been subpoenaed or requested in discovery. [FN56] Of course, disclosure may be *481 resisted. There can be objections to discovery and subpoenas may be quashed. But that process nonetheless requires good faith compliance, or at least acknowledgement of the existence of the requested items.

An expert may ordinarily rely upon the decisions of retaining counsel with regard to discoverability. It is not unusual for a lawyer to advise a witness that certain documents must be produced while others need not be. In either case, however, the witness must forthrightly answer questions about the existence and location of documents or physical objects relevant to the expert's work.

Most important, an expert should never destroy any item, document, object, photograph, or record for the purpose of concealing it from discovery or obstructing another party's access to evidence. Of course, papers and objects may be discarded in the course of "housekeeping," but any item that has been requested in discovery must be preserved until the request has been complied with by the expert or disallowed by a court.

C. DEPOSITIONS

A deposition is pretrial testimony, taken under oath for the purpose of discovering what the witness has to say. Depositions generally proceed in a lawyer's office. There is no judge present, and consequently there is no one there to resolve disputes between the attorneys or to instruct the witness how to proceed. There are relatively few ethics problems exclusive to depositions, though all of the standard issues such as confidentiality, coaching, and candor certainly can and do arise. In addition, the fact that no judge is present during the testimony raises one unique question.

From time to time in the course of almost every deposition, lawyers are inclined to confer with their witnesses. Sometimes the conference occurs "off the record," either in whispers at the table, or during a formal recess. Other times the lawyer speaks directly to the witness "on the record," with all counsel present and the court reporter busily transcribing everyone's remarks. On-record comments often come in the form of instructions or advice to the witness. Either circumstance can quickly become uncomfortable for an expert, especially if the witness is unfamiliar with local procedures.

1. Conferring Off the Record

Jurisdictions differ widely, one is almost tempted to say wildly, about the acceptability of conferences between lawyer and witness in the course of a *482 deposition. It was once considered routine almost everywhere for lawyers to pull aside their witnesses so long as there was no question pending at that particular moment. While most such conferences were no doubt conducted in good faith to clarify a point, to preserve a confidence, or to calm down a nervous witness, they were also the occasion of much abuse. Too many lawyers used off-record conferences to obstruct the deposition, coach the witness, or worse.

In a predictable reaction, courts in many jurisdictions have now issued rules or orders that significantly limit a lawyer's right to confer with a witness during deposition. The most drastic restrictions prohibit all conferences, other than those necessary to determine the applicability of an evidentiary privilege. [FN57]

Though the clear trend is toward regulation, if not outright elimination of witness conferences, it has not taken hold everywhere. Consequently, expert witnesses may face a great variety of environments, and may not always be able to count on the lawyers for clear or knowledgeable directions. [FN58] What is a witness to do?

The rules of deposition procedure are aimed primarily at counsel, and lawyers are expected to understand and follow the rules. Consequently, experts may generally rely on counsel's representations concerning the acceptability of off-record conferences. Certainly, if the deposing lawyer does not object, the witness has little reason to be concerned about the propriety of the conference.

On the other hand, the deposing lawyer may well object. The following scenario places the witness in an extremely awkward position.

RETAINING LAWYER: Excuse me, but I need to confer with the witness fora moment before you ask the next question. Let's go off the record.

DEPOSING LAWYER: Off-record conferences are not permitted in this jurisdiction, especially with expert witnesses. Let's proceed.

RETAINING LAWYER: You're wrong about that. We're going off the record.

DEPOSING LAWYER: I object. If you insist on conferring off the record you will be putting yourself and the witness at risk of contempt of court. I will seek a protective order and I intend to enforce it.

RETAINING LAWYER: Bunk. I'm taking my witness out of the room. I'll tell you when we are ready to reconvene. (Speaking to witness) Let's get of here.

It is not the witness's job to resolve this squabble between the attorneys. While *483 there must be an answer to the controversy--the conference is either allowed or it is not--the witness ordinarily has no way of knowing which lawyer is correct.

Unless the witness has reliable independent knowledge of the jurisdiction's rule, the best approach to this problem is probably to follow the directions of the retaining lawyer. Recall that an expert has specific professional obligations to the client, including a duty to take reasonable steps to protect certain confidences. It is the retaining lawyer who speaks for the client, and it is the retaining lawyer who is most knowledgeable about the effect of the deposition upon the client's confidences. Hence, the prudent path is usually to accept the retaining lawyer's understanding of the rules.

Nonetheless, experts should be aware that retaining counsel is not infallible. An expert should never violate or disregard a court order, no matter how many assurances are forthcoming from retaining counsel. Even where conferencing is freely allowed, an expert should likewise never permit retainingcounsel to dictate or alter the content of her testimony. In extreme or extraordinary circumstances, the expert should consider whether she needs to consult her own attorney.

2. Instructions or Directions

From time to time, retaining counsel may interrupt a deposition by giving instructions directly to the witness. For example, if the lawyer believes that a particular question is improper, or that it seeks privileged information, the witness may be directed not to answer. Such instructions generally occur on the record, often attended by spirited argument between the lawyers. The following colloquy is typical, including the ultimate challenge to the witness.

RETAINING LAWYER: I object to that question since it calls for "work product." Iinstruct the witness not to answer.

DEPOSING LAWYER: You waived work product when you designated the witness as a testifying expert. The question stands.

RETAINING LAWYER: You can ask what you want, but the witness is not going to respond. If you want an answer you'll have to take it before the judge.

DEPOSING LAWYER: This witness is not your client. You can object, but you cannot give her any instructions. I am going to ask the question one more time. If the witness refuses to answer we have no choice but to certify the question and get a court order compelling her to answer. (Speaking to the witness) Are you going to follow your lawyer's instructions and refuse to answer my question?

*484 The witness is now in a bind. Retaining counsel has instructed her not to answer a question but the deposing lawyer insists threatening court action if she refuses. Which lawyer is right? Which one should the witness believe? Most important, how should the witness respond?

As is often the case, it turns out that each lawyer is partially correct, and each is partially wrong. It is imperative that the retaining lawyer take the necessary steps to protect privileged information, including so-called "work product." [FN59] Those steps may well include preventing an expert witness from disclosing otherwise undiscoverable information during a deposition. The deposing lawyer is accurate, however, in pointing out that the retaining lawyer does not represent the witness and cannot give her instructions. Although this might seem to confuse the matter, it actually suggests a clear course of conduct for the expert.

The witness must always be sensitive to the need to shield privileged information. Once information has been revealed, it may lose its protected nature even if the deposing lawyer was never entitled to it in the first place. [FN60] This "cat out of the bag" rule requires extreme caution in responding to questions that have drawn objections. And while it is true that retaining counsel cannot instruct an expert to refrain from answering, that does not mean that the witness must answer.

Here is the solution. If the witness improperly declines to answer, the information can always be provided later. Thus, there is relatively little harm in refusing to answer a particular question, pending resolution by the lawyers or a ruling by the court. On the other hand, information can never be retrieved once it has been disclosed. Great damage can be done by ignoring an objection and by proceeding to reply.

Thus, in the absence of other factors, the best approach for a witness is to decline to answer questions once retaining counsel has objected on the basis of privilege or confidentiality. [FN61] A polite refusal to answer will preserve the objection so that it may, if necessary, be brought before the court, as in the following example.

DEPOSING LAWYER: Are you going to follow your lawyer's instructions and refuse

to answer my question?

EXPERT WITNESS: I am not following anyone's instructions, but I decline to answer that question. It is not my job to resolve disputes between counsel about privilege or discoverability.

*485 One last point. Note that the deposing attorney made a sly reference to "your lawyer's instruction." Retaining counsel is not the witness's lawyer. Expert witnesses are almost never represented by counsel at a deposition. The expert is there to provide an independent analysis and opinion. Since the expert is not a party to the case, the expert is not represented by either of the attorneys.

VI. TRIAL CONDUCT As with discovery, the basic principles of professional ethics govern an expert witness's conduct at trial. In addition, the expert must be aware of the following "trial specific" issues, including ex parte communication, third party communication, and excluded evidence.

A. EX PARTE COMMUNICATION

1. Judges

Ex parte communications are those that involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter. [FN62] During trial, it is normally prohibited for the judge to participate in a conversation that includes only one side of the case. Of course, the judge can engage in pleasantries with a single lawyer, and certain matters may legitimately be heard without all parties present. [FN63] But on matters related to the case at hand, the general rule is that all communication with the court must take place in the presence of all attorneys.

Thus, expert witnesses should avoid engaging in private conversations with the court. Should the expert incidentally come in contact with the judge, perhaps in the hall or away from the courthouse entirely, care should be taken not to discuss the substance of the case or the content of the witness's testimony.

It occasionally occurs that an ex parte interview between the court and a witness is either authorized by law or agreed to by the parties. In those *486 circumstances, the witness may (and should) communicate candidly with the judge.

Unfortunately, it also occurs that judges seek out witnesses even without legal justification. [FN64] Perhaps the judge is curious, incautious, or simply unaware of the extent of the rule against ex parte communication. Whatever the reason, such contact can obviously cause much discomfort for the witness. Most witnesses would never presume to question the judge's knowledge of law or ethics. And, of course, the judge is the judge, perhaps the interview is permitted under the circumstances of the case?

Unless the circumstances are clearly improper, it may be extremely difficult for an expert witness to refuse a judge's request for a private interview. In all situations, however, the occurrence of such an interview should immediately be reported to all counsel in the case.

2. Jurors

All communication between an expert witness and the jurors must take place from the witness stand. It is never permissible for a witness to engage in private discussion with a juror. When encountering jurors in the courthouse hallway or cafeteria, contact should be limited to a polite smile or greeting. Under no circumstances should a witness ever discuss a case with a sitting juror.

B. THIRD PARTY COMMUNICATION

Once a trial has begun, and particularly after the witness has taken the stand, there are significant limits on the propriety of a witness's communications with others, including other witnesses, counsel, and members of the press.

1. Other Witnesses

Many courts follow a policy of excluding witnesses from the courtroom while other witnesses are testifying. [FN65] Experts are often excepted from such orders, but that is not always the case. Thus, an expert witness should always check with retaining counsel before attending the trial as an observer.

Equally important, experts must understand that the exclusion of witnesses is meant to prevent them from gaining knowledge of other witnesses' testimony; it is not merely a prohibition against sitting in the courtroom. Thus, an expert *487 should not debrief another witness who has already testified and should not read the transcript of earlier testimony, other than at the direction of trial counsel.

2. Counsel

Once a witness has taken the stand, what matters may she discuss with retaining counsel during breaks and recesses? There is no single answer to this question, as the rules vary considerably from jurisdiction to jurisdiction.

In some courts it is considered improper for a witness who has already taken the stand to have any contact whatsoever with any of the attorneys in the matter. In other jurisdictions, witnesses may speak with counsel, but not about the substance of the case. In yet other jurisdictions, the witness and the lawyer may speak freely, but the content of any discussion may be explored on cross-examination.

Complicating matters further, there is no unanimity as to when the various restrictions begin to apply. Thus, some states allow continuing lawyer-witness contact until the end of the direct examination, barring only once the witness has been "tendered for cross." In other courts, the ban on communication begins as soon as the witness is placed under oath.

Needless to say, expert witnesses should determine the applicable rule for the court in question. Whatever the rule, the witness should comply.

3. The Press

In the absence of a gag order or secrecy statute, witnesses are free to speak with the press about the trials in which they have participated.

A sense of professionalism, however, may well counsel restraint. Ordinarily, a party to litigation does not retain an expert for the purpose of speaking to the press. The party may not want the case publicized and may not want to risk the exposure of confidences. In this regard, experts should take their cue from retaining counsel.

C. EXCLUDED EVIDENCE

With or without the expert's knowledge, certain evidence may have been ruled inadmissible by the court. While judges most often make evidentiary rulings in response to objections at trial, they may also rule on motions in limine before the expert ever takes the stand. Once evidence has been ruled inadmissible, either during or before the witness's testimony, it is unethical to sneak it in "through the back door." [FN66] Thus, if an expert has been instructed to refrain from testifying *488 about certain facts or on certain issues, the witness should not attempt to blurt out the proscribed information on the pretext of answering an unrelated question.

VII. POSSIBLE LIABILITY FOR NEGLIGENCE

While the doctrine of witness immunity has traditionally protected experts from litigation arising out of their forensic work, [FN67] a theory of expert witness negligence may be emerging. [FN68] The term "theory" is apropos; to date no such standard has been firmly established. [FN69] Nonetheless, some argue for its inception, [FN70] and a hand-full of courts have warmed to the notion. [FN71]

CONCLUSION

As modern litigation continues its march toward increasing technical complexity, it will become more important to define and understand issues of ethics and professionalism as they relate to expert witnesses. This Article was intended as a first step in that direction. While it may not have answered all of the most important questions, perhaps it has succeeded in raising the right issues.

[FNa1]. Professor of Law, Northwestern University. Thanks are due to Jill Trumbull-Harris, Northwestern University School of Law class of 2000, for research assistance. This Article is adapted from STEVEN LUBET, EXPERT TESTIMONY: A GUIDE FOR EXPERT WITNESSES AND THE LAWYERS WHO EXAMINE THEM (1998).

[FN1]. See Michael A. Graham, Expert Witness Testimony and the Federal Rule of Evidence: Insuring Adequate Assurance of Trustworthiness,1986 U. ILL. L. REV. 43, 45 (1986) (noting that practicing lawyers can locate quickly and easily an expert witness to testify in nearly every sort of case); see also Defendants File Expert List with Texas District Court, 11 MEALEY'S LITIG. REP.: TOBACCO (Mealey) No. 5 (July 3, 1997) (listing the 101 proposed expert witnesses for the defense in Texas' Medicaid recovery action against the American Tobacco Company).

[FN2]. See, e.g., Lazy Oil v. Witco Corp., 1997 U.S. Dist. LEXIS 21397 (W.D. Pa. 1997) (discussing issues relevant to the settlement of an antitrust class action suit).

[FN3]. See, e.g., GE v. Joiner, 522 U.S. 136 (1997) (discussing the appropriateness of certain witnesses in testifying about the nature of injuries).

[FN4]. See, e.g., United States v. Williams, 81 F.3d 1434, 1441 (7th Cir. 1996) (finding the designation of a gang member defendant as an expert appropriate where his "specialized knowledge" enabled him to translate "gang codes" for the jury).

[FN5]. Samuel R. Gross, Expert Evidence, 1991 WIS. L. REV. 1113, 1119-20.

[FN6]. PRINCIPLES OF MEDICAL ETHICS V (Am. Med. Ass'n 1996).

[FN7]. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1996) [hereinafter MODEL RULES].

[FN8]. Ark. Code Ann. § 12-12-504(a) (Michie 1987); 325 Ill. Comp. Stat. 5/4 (West 1994); Minn. Stat. Ann. § 626.556 (West 1992). Note also that in most states the duty to report supersedes any privilege of confidentiality. See Jaffee v. Redmond, 518 U.S. 1 (1996) (discussing Supreme Court recognition of both a psychotherapist-client and social worker- client privilege and noting that all 50 states and the District of Columbia already recognize some form of a psychotherapist-client privilege and the vast majority of states extend that privilege to licensed social workers); see also id. at 28 n.19 (noting "we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist"); United States v. Burtrum, 17 F.3d 1299, 1302 (10th Cir. 1994) (discussing how child abuse is generally an exception to these privileges since it "occur[s] in a clandestine manner and victimize[s] a vulnerable segment of society" and declining to recognize a psychotherapist/client privilege in a criminal child sexual abuse case and commenting that "moreover, minor victims often are intimidated by the legal system and may have difficulty testifying" and recommending special trial procedures for child victims); Thomas R. Malia, Annotation, Validity, Construction, and Application of Statute Limiting Physician-Patient Privilege in Judicial Proceedings Relating to Child Abuse or Neglect, 44 A.L.R.4th 649 (1987) (listing and discussing cases).

[FN9]. DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1988); DAVID LUBAN, THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 38-39 (1983); Gerald Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. REV. 63 (1980).

[FN10]. See, e.g., ETHICAL GUIDELINES FOR OCCUPATIONAL AND ENVIRONMENTAL MEDICINE EXPERT WITNESSES (Am. College of Occupational & Envtl. Med. 1997); ETHICAL PRINCIPLES AND CODE OF CONDUCT § 7 (Am. Psychological Ass'n 1992).

[FN11]. See, e.g., CODE OF PROFESSIONAL CONDUCT (Am. Inst. of Certified Pub. Acct. 1997).

[FN12]. See, e.g., PRINCIPLES OF MEDICAL ETHICS (Am. Med. Ass'n 1996).

[FN13]. See, e.g., MODEL RULES.

[FN14]. See, e.g., Am. Psychological Ass'n, supra note 10.

[FN15]. Fed. R. Evid. 702.

[FN16]. See Lester Brickman & Ronald Rotunda, When Witnesses Are Told What to Say, WASH. POST, Jan. 13, 1998, at A15 (noting that lawyers may overstep and put their words in the mouths of witnesses); Jan Crawford Greenburg, The Whole Truth ... and Nothing But; The Line Between Coaching Witnesses and Obstructing Justice Is a Lot Fuzzier Than You Would Think, CHI. TRIB., June 7, 1998, at C1 (noting that even prosecutors can "improperly shape witness' testimony"); Larry Tye, Boom in Experts For Hire Worries Trial Observers, BOSTON GLOBE, Oct. 26, 1997, at A1 (commenting that lawyers may influence testimony by limiting questions asked).

[FN17]. MODEL RULES Rule 4.1.

[FN18]. JAMES BOSWELL, THE LIFE OF SAMUEL JOHNSON 47 (1887).

[FN19]. The current standard for admitting expert scientific testimony in federal trials was set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the court stated that the trial judge must determine at the outset whether the expert is proposing to testify to "(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id at 592. The Court stated that in order to "qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method." Id. at 590. The Court noted four nonexhaustive factors that would bear on this inquiry: (1) falsifiability, (2) peer review, (3) rate of error, and (4) general acceptance. Id. at 593-94. In Kumho Tire Co. v. Carmichael, the court applied the same four factors to non- scientific expert testimony. 119 S. Ct. 1167 (1999). See also GE v. Joiner, 522 U.S. 136 (1997) (holding that appellate courts reviewing a trial court's decision to admit or exclude expert testimony should apply the abuse of discretion standard).

[FN20]. MODEL RULES Rule 3.1 cmt. 1.

[FN21]. See STEVEN LUBET, MODERN TRIAL ADVOCACY 244-45 (2d ed. 1997) (listing techniques for cross-examining expert witnesses).

[FN22]. Even where the witness was not retained for the purpose of testimony, as in the case of a treating physician, most professional privileges are waived once the witness is called to testify. Gross, supra note 5, at 1223.

[FN23]. See Fed. R. Civ. P. 26(a)(2)(B) (declaring that discovery disclosures include the expert's written report, which "shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions ..."). The accompanying commentary states that "[g]iven this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions-- whether or not ultimately relied upon by the expert-- are privileged or otherwise protected from disclosure when such persons are testifying or being deposed." Id.

[FN24]. Some courts have gone even further. In Herrick Co. v. Vetta Sports, Inc., the judge ordered an ethics expert to turn over to plaintiffs the records of 18 unrelated matters on which he had consulted with the defendant law firm. No. 94 Civ. 0905, 1998 U.S. Dist. LEXIS 14544 (S.D.N.Y. Sept. 14, 1998). In fact, the disclosure order extended to nine matters in which the content of the expert's opinion had not previously been disclosed to third parties. Though such information "would normally be shielded by the work product doctrine or attorney-client privilege," the court held that these protections were waived once the expert was designated as a potential witness. Id.

[FN25]. See RESTATEMENT (SECOND) OF AGENCY § 395 (1958) ("Unless otherwise agreed, an agent is subject to a duty to the principal not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency ...").

[FN26]. See id. § 388 ("Unless otherwise agreed, an agent who makes a profit in connection with transactions conducted by him on behalf of the principal is under a duty to give such profit to the principal.").

[FN27]. Other law may also limit the expert's use of confidential information. For example, an economics expert may obtain "insider information" concerning a publicly traded corporation. The use of this information for investment purposes could constitute a crime under the federal Securities Exchange Act.

[FN28]. See Fed. R. Civ. P. 26(b)(4)(A) (1993) (allowing parties to depose "any person who has been identified as an expert whose opinions may be presented at trial"); see also id. 26(b)(4)(B) (declaring, in part, that "a party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial").

[FN29]. See Erickson v. Newmar Corp., 87 F.3d 298, 302-03 (9th Cir. 1996) (finding an attorney guilty of "misconduct" that was "prejudicial to the administration of justice" following an ex parte meeting with opposing counsel's witness); Campbell Indus. v. M/V Gemini, 619 F.2d 24, 26 (9th Cir. 1980) (finding that an attorney commits a "flagrant violation" of federal rule of civil procedure 26(b)(4)(A) if she makes ex parte contact with an opposing party's expert witness); Heyde v. Xtraman, Inc., 404 S.E.2d 607, 611 (Ga. Ct. App. 1991) (holding that an attorney who does not follow the proper discovery procedures regarding expert witnesses "should not now be allowed to circumvent them by engaging in ex parte communications with the opposing party's expert"); see also GEOFFREY C. HAZARD & W. WILLIAM HODES, THE LAW OF LAWYERING § 3.4, at 402 (2d ed. Supp. 1994) (concluding that, "Since existing rules of civil procedure carefully provide for limited and controlled discovery of an opposing party's expert witnesses, all other forms of contact are impliedly prohibited"). Although the Model Rules do not squarely address this issue, the ABA Committee on Ethics and Professional Responsibility declared that "a lawyer who engages in such contacts may violate Model Rule 3.4(c)." ABA Comm. on Ethics and Prof. Responsibility, Formal Op. 93-378 (1993). This applies only if "the matter is pending in federal court or in a jurisdiction that has adopted an expert-discovery rule patterned after Federal Rule of Civil Procedure 26(b)(4)(A). Id. Model Rule 3.4(c) states that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." MODEL RULES Rule 3.4(c).

[FN30]. See Brown v. Hamid, 856 S.W.2d 51, 54-55 (Mo. 1993) (holding that the trial court did not err in failing to sanction improper ex parte contact because prejudice to the complaining party was not shown); see also Brandt v. Pelican, 856 S.W.2d 658, 661 (Mo. 1993) (finding no grounds for a new trial where an expert medical witness had also served as plaintiff's treating physician).

[FN31]. See Erickson, 87 F.3d at 300 (denying plaintiff's motion for judgment against the defendant for tampering with a material witness when defense counsel asked the plaintiff's expert witness to evaluate evidence in an unrelated case).

[FN32]. ABA Standing Comm. on Prof. Conduct, Formal Op. 97-407 (1997).

[FN33]. MODEL RULES Rule 7.1.

[FN34]. See id. Rule 1.7(a) (stating that a lawyer may engage in such representation only if each client consents following disclosure).

[FN35]. "A duty to advance a client's objectives diligently through all lawful measures, which is inherent in a client-lawyer relationship, is inconsistent with the duty of a testifying expert." ABA Standing Comm. on Prof. Conduct, Formal Op. 97-407 (1997).

[FN36]. There is authority that one person may testify for both sides (on different issues) in the same lawsuit. Id.

[FN37]. See supra notes 20-21 and accompanying text.

[FN38]. See, e.g., Theriot v. Parish of Jefferson, 1996 U.S. Dist. LEXIS 9713 (E.D. La. 1996) (disqualifying an expert where a case amounted to "an outgrowth of ... prior litigation" in which expert was consulted by, and testified for, the adverse party). Note that the affected clients could consent.

[FN39]. Courts have developed the following test for determining whether an expert should be disqualified for switching sides. "First, was it objectively reasonable for the first party who claims to have retained the expert to conclude that a confidential relationship existed? Second, was any confidential or privileged information disclosed by the first party to the expert?" Koch Ref. Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178, 1181 (5th Cir. 1996). If a negative answer is given to either prong, "disqualification is likely inappropriate." Wang Lab., Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991). Additionally, "many lower courts have considered a third element: the public interest in allowing or not allowing an expert to testify." Koch, 85 F.3d at 1181. The party seeking disqualification bears the burden of proving these elements. Cordy v. Sherwin-Williams Co., 156 F.R.D. 575, 580 (D.N.J. 1994).

[FN40]. "[N]o one would seriously contend that a court should permit a consultant to serve as one party's expert where it is undisputed that the consultant was previously retained as an expert by the adverse party in the same litigation and had received confidential information from the adverse party pursuant to the earlier retention. This is a clear case for disqualification." Toshiba, 762 F. Supp. at 1248. Note that both elements of the test must be proven in order to disqualify the expert; even if a confidential relationship exists, disqualification is inappropriate unless some privileged or confidential information passed. If this were not the rule, then a lawyer could potentially disqualify an expert merely by retaining him, with no intention of actually using the expert's services, to disable his opponent from using the expert for himself. Id.

[FN41]. See Hansen v. Umtech Industrieservice Und Spedition, No. CIV.A.95-516 MMS, 1996 U.S. Dist. LEXIS 10949, 20 (D. Del. July 3, 1996) (noting that "the most important consideration in expert disqualification cases ... is the preservation of confidentiality").

[FN42]. See, e.g., English Feedlot, Inc. v. Norden Lab., Inc., 833 F. Supp. 1498 (D. Colo. 1993) (refusing to disqualify an expert on the grounds that no confidential information had been given to the expert); Mayer v. Dell, 139 F.R.D. 1 (D.D.C. 1991) (refusing to disqualify an expert where no confidential relationship was found with an original client).

[FN43]. See, e.g., Toshiba, 762 F. Supp. at 1248 (disqualifying an expert who was given a detailed memorandum containing a patent file history and potential defenses to the lawsuit, both of which were protected confidential work products); Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271 (S.D. Ohio 1988) (disqualifying an expert who switched sides after having extensive involvement with the original client, including a retainer agreement and compensation, reviewing case material, and preparing an oral report).

[FN44]. See infra Section IV.C. (concerning the relationship between preclusion and fee arrangements).

[FN45]. MODEL RULES Rule 3.4(b) cmt. See also, MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 7-109(C) (1980) [hereinafter MODEL CODE].

[FN46]. MODEL RULES Rule 3.4(b) cmt. See also Tagatz v. Marquette University, 861 F.2d 1040 (7th Cir. 1988) (discussing ethical problems with contingent fees); Swafford v. Harris, 967 S.W.2d 319 (Tenn. 1998) (holding a contingency fee void as against public policy). But see David Medine, The Constitutional Right to Expert Assistance for Indigents in Civil Cases, 41 HASTINGS L.J. 281 (1990) (discussing the importance of expert witnesses to indigent defendants); Reed E. Schaper, The Contingent Compensation of Expert Witnesses in Civil Litigation, 52 IND. L.J. 671 (1977) (arguing in favor of an impartial expert to help satisfy the needs of less affluent litigants); Note, Contingent Fees for Expert Witnesses in Civil Litigation, 86 YALE L.J. 1680 (1977) (arguing that indigents should be able to contract on a contingent basis with expert witnesses); Jeffrey Parker, Note, Contingent Expert Witness Fees: Access and Legitimacy, 64 S. CAL. L. REV. 1363 (1991) (examining current expert witness compensation schemes and proposing alternatives).

[FN47]. MODEL CODE DR 7-109(C). The Model Code has been superseded in most states by the Model Rules, but the definitions of "contingent fee" remain accurate. See, e.g., Illinois Rules Of Professional Conduct Rule 3.3(a)(15).

[FN48]. See Mike Francet, Clock's Running on Billable Hours, NAT'L L.J. Dec. 19, 1994, at C1 (noting how value billing, among other alternative billing methods, is "becoming increasingly commonplace"); David H. Maister, The New Value Billing, AM. LAW., May 1994, at 40 (describing value billing schemes including holdback and guarantee billing systems).

[FN49]. Some experts bill at a higher (or "premium") rate for time spent in deposition or trial, on the theory that such time is more taxing or arduous. In the same vein, many lawyers charge more for trial time and physicians charge more for surgery than they do for office visits. "Premium time" billing is not regarded as unethical, though the practice is not widespread.

[FN50]. See supra Section III.B.

[FN51]. Lester Brickman & Lawrence A. Cunningham, Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law, 57 FORDHAM L. REV. 149 (1988). See also, P.S. Kunen, No Leg To Stand On: The General Retainer Exception To the Ban on Nonrefundable Retainers Must Fall, 17 CARDOZO L. REV. 719 (1996) (arguing that an attorney should not be permitted to retain a fee simply because it is paid as a part of a general retainer, if the representation terminates prematurely).

[FN52]. See, e.g., Federal Sav. & Loan Ins. Corp. v. Angell, Holmes & Lea, 838 F.2d 395 (9th Cir. 1988) (holding that a firm was not entitled to fees for services performed after the date of firing); Wong v. Michael Kennedy, P.C., 853 F. Supp. 73 (E.D.N.Y. 1994) (noting that a nonrefundable retainer agreement is a per se violation of public policy and is unenforceable); In re Comstock, 664 N.E.2d 1165 (Ind. 1996) (suspending an attorney for charging an unreasonable fee); In re Cooperman, 633 N.E.2d 1069 (N.Y. 1994) (holding that use of nonrefundable fee arrangements warrants a two-year suspension).

[FN53]. For an extended discussion of the use of nonrefundable retainers by certain expert witnesses, see Lester Brickman & Lawrence A. Cunningham, Nonrefundable Retainers Revisited, 72 N.C. L. REV. 1 (1993) (arguing against the use of nonrefundable retainers by lawyer "ethics experts"); Steven Lubet, The Rush to Remedies: Some Conceptual Questions About Nonrefundable Retainers, 73 N.C. L. REV. 271 (1994) (demonstrating that use of nonrefundable retainers by expert witnesses is ethically acceptable); Lester Brickman & Lawrence A. Cunningham, Nonrefundable Retainers: A Response to Critics of the Absolute Ban, 64 U. CIN. L. REV. 11 (1995) (relenting);

[FN54]. Fed. R. Civ. P. 26(b)(4).

[FN55]. Supra Section IV.C.

[FN56]. See 18 U.S.C. §§ 1501-1515 (1996) (providing criminal penalties for those who obstruct justice by tampering with evidence); see also Phoebe L. McGlynn, Note, Spoliation in the Product Liability Context, 27 MEM. ST. U.L. REV. 663, 664 (1997) (discussing criminal and civil liability for the destruction of evidence). Cf. Margaret O'Mara Frossard & Neal S. Gainsberg, Spoliation of Evidence in Illinois: The Law After Boyd v. Traveler's Insurance Co., 28 LOY. U. CHI. L.J. 685, 686 (1997) (discussing how some states now recognize spoliation of evidence as a tort); Eric Marshall Wilson, Note, The Alabama Supreme Court Sidesteps a Definitive Ruling in Christian v. Kenneth Chandler Construction Co.: Should Alabama Adopt the Independent Tort of Spoliation?, 47 ALA. L. REV. 971, 977-78 (1996) (observing that a number of states now recognize spoliation of evidence as a tort).

[FN57]. See DAVID M. MALONE & PETER T. HOFFMAN, THE EFFECTIVE DEPOSITION (2d ed. 1996) (discussing the invocation of privilege at depositions).

[FN58]. Id.

[FN59]. An attorney's "work product," including documents and tangible things "prepared in anticipation of litigation or for trial," is generally protected from discovery by the opposing party. Fed. R. Civ. P. 26(b)(3).

[FN60]. "Generally ... if a party voluntarily discloses privileged information to anyone other than his or her attorney, the party completely waives the protection afforded by both the attorney-client privilege and the work-product doctrine." Janet Hall, "Limited Waiver" of Protection Afforded by the Attorney-Client Privilege and the Work-Product Doctrine, 1993 U. ILL. L. REV. 981, 981 (citing federal rule of civil procedure 26(b)(3) and federal rule of evidence 501).

[FN61]. Not all objections require refusal to answer. Lawyers will often say something on the order of, "Objection, the witness may answer." Experts need not concern themselves with the rules of evidence or other procedural complexities that create this situation. MALONE & HOFFMAN, supra note 57.

[FN62]. JEFFREY M. SHAMAN, STEVEN LUBET, & JAMES ALIFINI, JUDICIAL CONDUCT AND ETHICS 149 (2d ed. 1995).

[FN63]. The legality of ex parte proceedings is beyond the scope of this Article.

[FN64]. See SHAMAN ET AL., supra note 62, at 162.

[FN65]. This is sometimes called "Invoking the Rule." Fed. R. Evid. 615. "Few trials begin without at least one of the parties asking that the judge invoke the rule." Gregory M. Taube, The Rule of Sequestration in Alabama: A Proposal for Application Beyond the Courtroom, 47 Ala. L. Rev. 177, 177 (1995). "The rule is the rule of sequestration which has been adopted by most modern rules of evidence." Id. at n.1.

[FN66]. See LUBET, supra note 21, at 81. Note, however, that federal rule of evidence 703 permits an expert to rely on inadmissible evidence in forming an opinion, if the inadmissible evidence is of a type reasonably relied upon by other experts in the field.

[FN67]. Such conduct, though otherwise actionable, escapes liability because the expert "is acting in furtherance of some interest of social importance ...." W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 114, at 815 (5th ed. 1984). If the social interest is deemed to be of special importance, absolute immunity may be afforded. Id. at 816. If, on the other hand, the interest is deemed to be less important but the expert has acted reasonably and in good faith, qualified immunity may be applied. Id. Expert witnesses have traditionally received absolute immunity for words spoken or written in the course of a judicial proceeding. Leslie R. Masterson, Note, Witness Immunity or Malpractice Liability for Professionals Hired as Experts?, 17 REV. LITIG. 393, 399 (1998) (citing KEETON, supra, § 114, at 816-17); see also Christopher M. McDowell, Note, Authorizing the Expert Witness to Assassinate Character for Profit: A Reexamination of the Testimonial Immunity of the Expert Witness, 28 MEM. ST. U.L. REV. 239, 241-42 (1997) (noting that when "experts are hired by a party, either to testify or to provide litigation support, the expert is cloaked with the shield of absolute immunity so long as the statements made by the witness are relevant to the proceeding").

[FN68]. Masterson, supra note 67, at 394; see also Douglas R. Richmond, The Emerging Theory of Expert Witness Malpractice, 22 CAP. U. L. REV. 693 (1993).

[FN69]. See Masterson, supra note 67, at 418 (concluding that "professionals who appear as expert witnesses at trial are protected from liability for their testimony by the doctrine of witness immunity").

[FN70]. Randall K. Hanson, Witness Immunity Under Attack: Disarming "Hired Guns," 31 WAKE FOREST L. REV. 497, 497 (1996); Eric G. Jensen, Note, When "Hired Guns" Backfire: The Witness Immunity Doctrine and the Negligent Expert Witness, 62 UMKC L. REV. 185, 185 (1993).

[FN71]. See, e.g., Levine v. Wiss & Co., 487 A.2d 397 (N.J. 1984) (holding immunity unavailable to shield a "friendly" accountant's malpractice, even though the professional was hired to prepare an appraisal for a judicial proceeding); James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982) (finding that while adverse doctors forensic misdiagnoses are not actionable under a claim of defamation, "the diagnoses themselves may be actionable on other grounds ... [the Plaintiff]is not prevented from recovering from the doctors for negligent misdiagnosis-medical malpractice merely because their diagnoses were later communicated to a court in the due course of judicial proceedings"); Bruce v. Byrne-Stevens & Assocs. Eng'rs, 776 P.2d 666 (Wash. 1989) (Pearson, J., dissenting) (arguing that the purpose of absolute witness immunity is not to shield an expert from otherwise actionable professional malpractice); Mattco Forge, Inc. v. Arthur Young & Co., 52 Cal. App. 4th 820 (Cal. Ct. App. 1997) (holding that immunity was unavailable to shield a claim against a "friendly" accounting firm for expert witness negligence); Murphy v. A.A. Mathews, 841 S.W.2d 671 (Mo. 1992) (holding that witness immunity does not protect an expert who provided negligent litigation support).

(Cite as: 37 NO. 1 Judges' J. 4)

Judges' Journal

Winter, 1998

*4 THE ROLE OF ETHICAL NORMS IN THE ADMISSIBILITY OF EXPERT TESTIMONY

Daniel W. Shuman [FNa1]

Stuart A. Greenberg [FNaa1]

Copyright © 1998 by the American Bar Association; Daniel W. Shuman, Stuart A. Greenberg

*5 Courts and legal commentators frequently complain about the ethics of expert witnesses.

Although the professional bodies that regulate the behavior of these experts were once ambivalent about their legal involvement, increasingly they have begun to promulgate ethical codes and guidelines that address legally relevant behavior. The courts have been largely unwilling, however, to utilize these ethical norms when addressing the threshold reliability requirements for expert testimony. In this article, we examine the rationale and the consequences of this approach and suggest that courts utilize ethical norms as red flags to raise potential problems of reliability in the admissibility of expert testimony.

INTRODUCTION

The legal profession and the professions of expert witnesses themselves, have complained about the way experts are used in the legal system for as long as we have been using expert witnesses. [FN1] These complaints are not surprising given the American adversarial system's reliance on lawyers to choose their own expert witnesses, and the potential of these expert witnesses to influence the outcome of litigation. Although the selection of potential fact witnesses is largely settled at the time of the litigated event, and is dictated purely by happenstance and the randomness of events, the selection of expert witnesses usually is not. Lawyers generally select expert witnesses long after the event has occurred, from a pool limited only by qualifications, cost, and expert willingness. The expert witness selection process is based primarily on the lawyer's assessment of the expert's ability to present favorable and persuasive opinion testimony.

One criticism of the utilization of expert witnesses addresses the judicial system's use [FN2] and ability to scrutinize expert testimony. [FN3] Another addresses the behavior of the experts themselves. The latter alleges that partisan experts often behave as if their own professional ethical norms do not apply when they act as expert witnesses. [FN4] This ethical critique maintains that partisan experts' opinions are often influenced by who pays them, [FN5] and that they often assert opinions in court that they would not assert as scientifically reliable in a professional forum, in their own fields of expertise. [FN6]

This problem is exacerbated by judicially imposed confidence threshold requirements. It is hardly possible to publish an experimental finding in a reputable scientific journal unless the researcher can demonstrate that the results would occur by chance less than 5 percent of the time. Error rates of not greater than one time in 100 or 1,000 are commonplace in published scientific studies. Yet, in most personal injury cases, for example, experts can offer opinions with only the confidence that, to a reasonable degree of medical or scientific certainty, [FN7] the defendant's conduct is (or is not) more likely than not to have caused the plaintiff's harm.

Why this huge discrepancy between what the courts will accept and what scientific peers will accept? We believe that the answer lies, at least in part, in the reality that rarely will the facts of a particular case closely match the variables, procedural controls, or the empirical results of a methodologically sound experiment. There is an inverse relationship between the forensic relevance and the scientific validity of much research. If the expert seeks to ground an opinion in scientific research, he or she must usually rely on a large number of experiments, of which each may address only some of the elements in the case, rather than any single experiment that addresses a majority of the unique facts of a particular case. For example, in applying the research that examines the effect of certain questioning styles on young children [FN8] to the questioning of a child in a particular case, the child witness will necessarily differ (by age; ethnicity; socio-economic status; intelligence; physical, emotional, religious, and moral development; prior life experiences; current emotional state; what is at stake in making a particular statement) from the children in the research, as will the questioner. The questions asked in the actual case will not be the same as those asked in the study, nor will the events examined in the study be the same as those present in the particular case. The expert must use his or her judgment and experience to extrapolate from the scientific literature to form an opinion based on the facts of the case.

The necessity for the expert to infer from many studies to form an opinion not only explains the lowered courtroom threshold, but it also explains why many ethical problems arise. What constitutes reliable testimony under a "more likely than not" standard, is not reliable to the standard for science. The reality is that the minimum thresholds of reliability for scientific research far exceed the minimum thresholds of reliability for the purpose of courtroom testimony. In the courtroom, the lower threshold allows for many of the errors and abuses that pass for expert testimony. Given the necessity for the lower reliability threshold of the courtroom, judges can best identify *6 and exclude witnesses who abuse this opportunity by being familiar with and applying the ethical norms of the profession. These norms will allow them to distinguish those experts who legitimately offer scientific testimony from those who misuse the opportunity for other motives and, in so doing, mislead the court.

Until recently, judges had nothing to guide them when attempting to assess the influence of payment and partisanship on an expert's forensic behavior, and its impact on the reliability of that expert's proffered evidence. This vacuum left courts to seek answers about the questionable behavior of partisan experts from other partisan experts. That has begun to change. Increasingly, many professional organizations concerned about the conduct of their members in the legal system have formulated ethical codes and guidelines that specifically address forensically relevant behavior. [FN9] These codes and guidelines seek to assure that when professional information is provided to third parties, such as the courts, it is done by those with the requisite expertise, relying on validated methods and procedures, using the informational bases that have been found necessary for accurate results, and understanding the limits of the profession's knowledge.

The courts, for the most part, have not embraced the use of these codes and guidelines to address the admissibility of unreliable expert testimony, although they apply professionally developed ethical norms in other contexts as a metric for professional competence. For example, courts apply ethical norms as one means to set the standard of care in professional malpractice cases, [FN10] by translating psychiatrists' and psychologists' ethical ban on sexual relations with patients [FN11] into a tort duty to abstain from this behavior. [FN12] Nonetheless, courts have been reluctant to apply professional ethical norms to the decision to admit expert testimony, even when these norms express professional consensus about what is minimally necessary to present reliable professional information.

Encouragingly, courts are becoming increasingly concerned with the behavior of expert witnesses, and are struggling to raise the reliability threshold for the admissibility of expert testimony. Initially, the Federal Rules of Evidence and state evidence rules patterned after them, evinced a "liberal thrust" [FN13] in favor of admissibility, rejecting an era of overprotectiveness of juries. However, in response to complaints from the legal, scientific, and business communities, the current paradigm places the onus on trial judges to act as gatekeepers to protect juries from unreliable expert testimony. Underlying this gatekeeping directive is a lingering concern with the proliferation of experts and the judicial system's limited ability to identify methods and procedures necessary to ensure reliable information. We suggest that ethical rules and guidelines may assist the courts in this task by serving as red flags to raise potential problems of the reliability of expert testimony. Further, we suggest that when an ethical violation is one that would raise questions as to the objectivity, impartiality, or reliability of the proffered testimony, then that violation should result in a presumption in favor of exclusion of that testimony.

JUDICIAL DISREGARD OF PROFESSIONAL ETHICAL CODES

While concerns about the way the ethics of expert witnesses are linked to the reliability of their testimony apply with equal force to all professions, these concerns have been particularly notable with regard to the testimony of psychiatrists and psychologists. This may be because of the increasing frequency with which these professionals are offered to support or oppose novel and often controversial claims. Examples include the host of newly recognized rights of tort recovery tied to the claims of repressed memory and post- traumatic stress disorder, [FN14] and to criminal defenses that "medicalize" behavior, such as "battered spouse syndrome." [FN15] Underlying concerns about the increased reliance on psychiatric and psychological evidence is a fear that what psychiatrists and psychologists really have to offer in the legal setting are personal values masked in scientific jargon, but not grounded in the methods and procedures of science. [FN16]

Because these judicial examinations of psychiatry and psychology may shape public perceptions of these professions, the professions have an important stake in their outcome. [FN17] There has been much discussion within psychiatry [FN18] and psychology [FN19] about the forensic application of the American Medical Association's (AMA) Principles of Medical Ethics, [FN20] the American Psychological Association's (APA) Ethical Principles of Psychologists and Code of Conduct, [FN21] and the emergence of ethical guidelines that specifically address the activities of psychologists and psychiatrists in court. [FN22] Psychiatric and psychological organizations have, however slowly, begun to address the unethical behavior of some of their members. For example, the APA Board of Trustees voted to expel Dr. James Grigson from membership "for arriving at a psychiatric diagnosis without first having examined the individuals in question, and for indicating, while testifying in court as an expert witness, that he could predict with 100 percent certainty that the individuals would engage in future violent acts." [FN23] Dr. Grigson's testimony in capital punishment cases regarding the future violence of defendants was the subject of numerous appellate opinions [FN24] including the United States Supreme Court's decision in Barefoot v. Estelle. [FN25]

In another instance, the APA censured a psychologist for falsely representing that he had conducted a one hour interview with a parent and child when he had not done so. [FN26] And, in yet another case arising out of a child custody proceeding, [FN27] the West Virginia state psychological association censured *7 a psychologist for making a recommendation without an adequate basis. The psychologist in question made a custody recommendation on the basis of a single ninety-minute interview with the children and one parent, without seeking the input or participation of the other parent. [FN28]

Although the courts have recognized the authority of psychiatric and psychological organizations to enforce their ethical norms relative to the activities of their members in the courts, they have been largely unwilling to incorporate the norms into their own standards for admissibility, which would discourage the unethical activity that results in unreliable expert testimony. For example, in Barefoot, [FN29] mentioned above, the APA's amicus brief to the Supreme Court asserted, inter alia, that Dr. Grigson should not have been permitted to render an opinion about the defendant's dangerousness in the absence of a personal examination, because it is "unethical for a psychiatrist to offer a professional opinion unless he/she has conducted an examination" [FN30] (at least when the opportunity to do so exists). Ironically, while Grigson's method did not survive peer review, it did satisfy judicial review.

It would be imprudent to abdicate judicial responsibility for the decision to admit expert testimony to a professional organization. However, prudence does dictate that in admitting expert testimony, the judiciary carefully consider the relevant professional ethical norms and the reasoning underlying them. In Barefoot, rather than addressing the reason that psychiatrists regard it as unethical to offer an opinion about the mental status of someone they have not examined and the impact on the reliability of any resulting opinion, the Court dismissed the APA's ethical argument noting that experts are frequently permitted to offer opinions based on hypothetical questions. [FN31] The Court discounted, without any analysis, the importance of mental health professionals conducting examinations to form accurate opinions. In essence, the Court lumped mental health professionals together with experts from other trades and professions for whom personal examinations or inspections do not play the same role in reaching reliable opinions.

The APA's Guidelines for Child Custody Evaluations in Divorce Proceedings, state that "comprehensive child custody evaluations generally require an evaluation of all parents and guardians and children, as well as observations of interactions between them." [FN32] Under these guidelines, a psychologist who evaluates only one parent may offer a noncomparative opinion about the person he or she has examined (e.g., that one parent is well adjusted and suffers from no psychopathology or has a good relationship with the child), however, the opinion should not address the best interests of the child-the ultimate standard that governs child custody determinations. An opinion about the best interests of the child in a custody evaluation is of necessity comparative and in the absence of comparative information, such an opinion lacks an adequate foundation. Although an expert's recommendation made without proper foundation may be grounds for professional disciplinary action, [FN33] the courts have not acknowledged its importance as a prerequisite for competent legal expert opinion.

Weber v. Weber [FN34] is an example of the court's failure to acknowledge the importance of the professional code and guidelines. In Weber, a psychologist offered an opinion on which parent should be primary caretaker, after performing an evaluation of only one parent. In response to a challenge to the admission of this testimony as unethical and unreliable, the court concluded that the deficiency bore on the weight, rather than the admissibility of the opinion. Although the APA Child Custody Guidelines address the evaluation of all parties and children as a fundamental element of a competent custody evaluation, the court did not treat this relevant professional ethical norm as a fundamental factor in assessing the competence of the expert's opinion.

Just as attorney conflicts of interest raise a fundamental limitation on the ability of one attorney to perform conflicting roles, [FN35] the same problem exists in other professions. One such conflict for psychiatrists and psychologists is between professional, clinical, and forensic roles. [FN36] For instance, a treating therapist may be asked to go beyond describing diagnosis and prognosis to ascertain whether sexual harassment in theworkplace or a sexual assault ten years earlier is the proximate cause of the injury for which the plaintiff seeks compensation. These conflicting roles threaten both the efficacy of therapy and the accuracy of judicial determinations for two reasons: (1) Therapy does not provide an adequate professional basis to gather the type and amount of data necessary to form an adequate foundation for a psycholegal assessment; and, (2) Such testimony asks the therapist, who is charged with being supportive and accepting, to be objective and judgmental. The importance of this role conflict is recognized in ethical norms for forensic psychiatrists [FN37] and psychologists. [FN38] While these conflicts occur daily, no reported cases reflect that these issues have been identified and raised in the courts.

Courts that would not hesitate to disqualify an attorney for the conflict of interest that arises from representing both the husband and wife in a contested divorce, for example, do not seem to take seriously the importance of role conflicts for other professionals. For example, in a case involving an allegation of an expert's ethical conflict, Baskerville v. Culligan Intl., Co., [FN39] Baskerville sued her former employer, Culligan, for sexual discrimination and harassment. Baskerville's "treating psychologist and her proposed expert witness regarding her psychological condition, treatment, *8 and prognosis" was her sister, Dr. Gale Bell, a psychologist. [FN40] The defendant sought to exclude Dr. Bell's testimony as inherently unreliable based on the ethical proscription on entering into conflicting roles set forth in the APA's Ethical Principles of Psychologists. [FN41] This rule prohibits a psychologist from entering into a treatment relationship with a sibling, spouse, parent, or child because it would impair the psychologist's objectivity and effectiveness. A psychologist should not treat a relative because the psychologist's personal relationship will invariably cloud the psychologist's professional judgment and application of professional skills. In addition, it risks threatening a breach of confidentiality with other family members, and interjecting the personal relationship as a treatment issue that could obfuscate or delay addressing the reason the relative sought treatment. [FN42] However, the court failed to see that this conflict fundamentally affected the reliability of her resulting opinion, refused to exclude her testimony on this basis, and simply noted that it was an appropriate subject for cross-examination.

The AMA's and APA's ethical codes are incorporated by reference into many state standards for licensing and regulation of the behavior of physicians and psychologists. [FN43] Yet, courts faced with ethically based challenges to the reliability of expert testimony look to the rules of evidence and see nothing there that explicitly refers to or incorporates the ethical codes and guidelines. This results in their giving these ethical norms little regard in evidentiary decisions.

FRYE AND DAUBERT

Under both Frye v. United States [FN44] and Daubert v. Merrell-Dow Pharmaceuticals, Inc., [FN45] professional scrutiny of the methods and procedures used in the evaluation process is a fundamental consideration in the admissibility of any resulting expert opinion. Frye requires the court to ascertain whether the expert's methods and procedures have gained general acceptance in the relevant professional community to assess its reliability. Daubert requires federal courts to determine "whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning properly can be applied to the facts in issue," [FN46] considering, among other things, peer review. Peer assessment is an explicit consideration in both determinations. The articulation of the minimum requirements for valid opinions or assessments in the ethical code or guidelines of the profession in which the expert bases a claim of expertise, goes to the heart of the admissibility requirements articulated in both Frye and Daubert.

While compliance with a profession's ethical code or guidelines provides no assurance that the reasoning and methodology underlying the testimony is scientifically valid, failure to comply with them is powerful evidence that such reasoning and methodology may be invalid. For example, articulations in psychiatrist's and psychologist's ethical codes and guidelines that an examination or interview is a prerequisite for an opinion or assessment, reflects professional consensus about the methodology necessary to render a valid opinion. While these codes and guidelines do not resolve for the courts whether psychiatrists or psychologists can contribute reliably to custody determinations, for instance, they do reflect the accumulated wisdom of these professions relative to the necessity of interviewing and observing both parents and their interactions with the child, when making a determination of the best interests of that child.

The problem with rendering an opinion in a child custody case regarding the most appropriate placement without first interviewing both parents is not simply that it is unethical, but rather why it is unethical. The opinion lacks a minimally adequate foundation. It does not lack an adequate foundation because it is unethical, it is unethical because it lacks an adequate foundation. Such an opinion should be rejected because the accumulated professional knowledge is that reliable opinions can only be reached based on an examination. Professional ethical codes and guidelines that address the reliability of methods and procedures are not collateral to the admissibility inquiry, but go to the heart of that inquiry.

Although courts are rarely explicit about their reasons for refusing to consider professional ethical norms, two reasons may explain their coolness toward applying them to admissibility decisions. The first reason is a free market approach to expert witnessing in which the jury is the marketplace. [FN47] According to this view, ethics are a utilitarian concern to be valued only for their impact on the expert's believability, and the jury is assumed to be able to assess the relevance of any violation of ethical rules to the expert's believability. This approach is reflected by the Supreme Court's response in Barefoot v. Estelle. [FN48] The Supreme Court posited that the jury could be "trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness." [FN49]

Apart from the significant assumptions this approach makes about juror decision making behavior without providing any support from the body of jury research, it is difficult to reconcile this approach with Daubert and the sea of change it signals, even in states that have not adopted the Daubert rationale. Daubert and a recent spate of state and federal decisions reject Barefoot's approach. [FN50] Thus, relating issues of experts' professional ethics to credibility rather than admissibility is inconsistent with contemporary views of the trial judge's gatekeeping responsibility.

Another possible rationale for failing to apply professional ethical norms to admissibility decisions questions *9 whether the professions' concerns ought to be the courts' concerns. Ethical codes may advance a variety of interests, some of which are guild interests and not all of which are concerned with reliability or designed to protect the public.

Realistically, a code of ethics consensually validates the most recent views of a majority of professionals empowered to make decisions about ethical issues. It is inevitably, anachronistic, conservative, protective of its members, the product of political compromise, restricted in its scope, and too often unable to provide clear-cut solutions to ambiguous professional predicaments. [FN51]

The appropriate response to this concern is simply that courts should not advance ethical principles designed to protect the profession at the expense of advancing the presentation of reliable opinions and assessments.

A related argument is that if the profession thinks these ethical rules are so important, they should enforce them themselves. Independent of professional willingness and ability to protect the courts, professional enforcement only addresses unethical conduct ex post. Moreover, effective professional enforcement requires adequate professional resources, which may be in doubt. Further, contrary to popular belief, experts who testify frequently are in the minority, accounting for 5 percent or fewer of testifying experts. [FN52] Expert witnessing is instead dominated by large numbers of occasional experts who testify infrequently. These occasional experts are less likely to be familiar with the specialized ethical concerns that distinguish forensic activities, and sensitive to professional enforcement actions taken against others for forensic activities. Moreover, their occasional behavior is less likely to trigger professional sanctions than the behavior of repeat players. Thus, professional enforcement actions sanctioning the behavior of occasional experts are less likely to reduce the presence of unethical experts as they account for only a minuscule portion of the testimony received by the courts.

Unless membership in the professional organization is a condition of practice, professional sanctions are only effective in precluding unethical expert witness behavior if legal actors give them due regard. In the absence of the equivalent of an integrated bar, these professional sanctions are of no immediate consequence to the right to practice or testify as an expert. Ex ante, case-by-case judicial enforcement of these ethical norms is necessary to curtail unreliable, unethical behavior.

ADMITTING ETHICAL EXPERT TESTIMONY

Ethical norms are red flags that raise fundamental problems with the reliability of professional methods, procedures, and opinions. An expert witness' violation of a relevant professional ethical norm that addresses the requirements for valid opinions or assessments should result in a presumption in favor of exclusion of that testimony. To assist courts in applying this approach, we suggest that when ruling on the qualification of a person to be an expert witness, courts consider (1) the professional organization that promulgated the standard or rule; (2) the purpose of the ethical norm; and (3) the appropriate remedy or response to a violation of the professional norm.

Because the majority of professional organizations are private, voluntary organizations, they may not represent the majority of the profession and may not ground their rules in rigorous study of the methods and procedures. Courts must be careful to probe both the professional organization that promulgated the norms and the process they used to do so.

Second, it is necessary to examine the concerns that the ethical norm is intended to address. One analysis of the ethical codes of thirty-five professional organizations revealed thirteen areas of commonality: "professional role in society, client/employee relations, integrity, objectivity/independence, diligence/due care/confidentiality, fees, advertising/solicitation, form of practice, consulting services/advising/evaluating, contractual relationships, communications, and supervision." [FN53] Ethical rules addressing advertising or form of practice, for example, have little bearing on the reliability of the resulting professional information and therefore, violations of these rules should have little bearing, if any, on admissibility decisions. Ethical rules addressing integrity, objectivity/independence, or diligence/due care, for example, have a significant impact on the reliability of the resulting professional information and therefore, violations of these rules should have a significant bearing on admissibility decisions. The ethical rules that require psychiatrists and psychologists to avoid conflicting roles, and to conduct a personal examination when it is possible to do so before rendering a professional opinion, are examples of rules that have a significant effect on the reliability of the resulting professional information, and for which unexcused violations should have a significant impact on admissibility decisions.

Third, the remedy for the failure to comply with ethical norms must be tailored to the harm. For example, the testimony of a forensic psychologist who violates the ethical rule about not taking contingent fees for expert testimony [FN54] or that of the therapist who violates the ethical rule about not treating relatives, [FN55] should be excluded entirely because these ethical violations raise global and pervasive concerns about the capacity of the expert to act competently. Likewise, a therapist who engages in the conflicting role of treating and forensic psychologist should be prohibited from offering testimony on psycholegal issues. However, he or she should be permitted to offer an opinion as a treating *42 psychologist regarding diagnosis and prognosis, because the unreliability concerns addressed by these ethical rules do not place in doubt the clinician's opinions about therapeutic issues.

CONCLUSION

The ethical dilemmas posed by the use of expert witnesses are caused by and inextricably intertwined with the way in which experts are used in the adversary system. [FN56] While proposals for reshaping the presentation of expert witnesses by using court-appointed impartial experts, for example, have been advocated for some time, [FN57] and could be implemented under existing rules, they have not generally taken hold, [FN58] because impartiality does not exist. [FN59] Thus, the adversary presentation of partisan experts and the concomitant ethical concerns it raises seem to be here to stay for the present.

Of all the possible judicial responses to this dilemma, one is clearly unacceptable; it will not do for courts to sit back and criticize the unethical behavior of experts without utilizing the tools available to address this problem. Where professional ethical codes exist, courts have at their disposal an important and practical tool to address the problem of unreliable expert testimony. When ruling on a party's challenge to the admissibility of expert testimony, or when it is appropriate for the court to raise the issue of admissibility on its own motion, ethical norms may serve as red flags to inform courts of potential problems of reliability. While these ethical norms cannot be expected to respond to all issues of forensic ethics, [FN60] they provide important clues for judges and lawyers to address significant issues that regularly come before the courts.

[FNa1]. Note 1. Daniel W. Shuman is a professor of law at the Southern Methodist University School of Law in Dallas, Texas. His research on ethical norms and the admissibility of expert testimony was made possible by a grant from the M.D. Anderson Research Fund.

[FNaa1]. Note 2. Stuart A. Greenberg, Ph.D., ABPP, is a forensic psychologist in private practice. He is affiliated with the Departments of Psychology and Psychiatry at the University of Washington in Seattle, Washington.

[FN1]. See, e.g., Keegan v. Minneapolis & St. Louis R.R., 76 Minn. 90, 95, 78 N.W. 965, 966 (1899) (Experts are "often the mere paid advocates or partisans of those who employ and pay them, as much so as the attorneys who conduct the suit.") quoted in Chaulk v. Volkswagen of America, Inc., 808 F.2d 639, 644 (7th Cir. 1986) (Posner, J., dissenting).

[FN2]. Anthony Champagne et al., An Empirical Examination of the Use of Expert Witnesses in American Courts, 31 JURIMETRICS J. 375, 392 (1991).

[FN3]. For an empirical examination of the criticism of the capacity of the legal system to scrutinize the testimony of experts, see, e.g., Champagne, supra note 2; Daniel W. Shuman, et al., An Empirical Examination of the Use of Expert Witnesses in the Courts-Part II, A Three City Study, 34 JURIMETRICS J. 193 (1994); Anthony Champagne et al., The Problem with Empirical Examination of the Use of Court-Appointed Experts: A Report of Nonfindings, 14 BEHAV. SCI. AND LAW 361 (1996); Daniel W. Shuman et al., Juror Assessments of the Believability of Expert Witnesses: A Literature Review, 36 JURIMETRICS J. 371 (1996); Daniel W. Shuman et al., Assessing the Believability of Expert Witnesses: Science in the Jury Box, 37 JURIMETRICS J. 23 (1996).

[FN4]. See Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 NW. U. L. REV. 469, 560 (1994).

[FN5]. See authorities cited, supra note 2.

[FN6]. Judge Patrick E. Higginbotham advanced this critique in In re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1234 (5th Cir. 1986).

[FN7]. See Michael H. Graham, Expert Witness Testimony and the Federal Rules of Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U. ILL. L. REV. 43 (defining reasonable degree of scientific certainty with reference to whether the expert relied on an accepted theory accepted in the expert's field).

[FN8]. STEPHEN J. CECI & MAGGIE BRUCK, JEOPARDY IN THE COURTROOM: A SCIENTIFIC ANALYSIS OF CHILDREN'S TESTIMONY (1995).

[FN9]. Bruce D. Sales and Daniel W. Shuman, Reclaiming the Integrity of Science in Expert Witnessing, 3 ETHICS & BEHAV. 223 (1993).

[FN10]. Allen v. Lefkoff, 265 Ga. 374, 453 S.E.2d 719 (1995).

[FN11]. AMERICAN PSYCHIATRIC ASSOCIATION PRINCIPLES OF MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY § 2(1) (1989) ("sexual contact with the patient is unethical"); American Psychological Association, Ethical Principles of Psychologists, 47 AM. PSYCHOLOGIST 1597, 1605 (1992) § 4.05 ("Psychologists do not engage in sexual intimacies with current patients or clients.").

[FN12]. See, e.g., Zipkin v. Freeman, 436 S.W.2d 753 (Mo. 1968); Weaver v. Union Carbide Corp., 378 S.E.2d 105 (W. Va. 1989).

[FN13]. Daubert v. Merrell-Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2794 (1993).

[FN14]. Daniel W. Shuman, Persistent Reexperiences in Psychiatry and Law: Current and Future Trends in Post-traumatic Stress Disorder Litigation, in POST-TRAUMATIC STRESS DISORDER IN LITIGATION: GUIDELINES FOR FORENSIC ASSESSMENT 1 (Robert I. Simon ed., 1995).

[FN15]. DANIEL W. SHUMAN, PSYCHIATRIC AND PSYCHOLOGICAL EVIDENCE ¶¶ 12-3-12- 6 (2d ed. 1994).

[FN16]. Maureen O'Connor, Bruce D. Sales & Daniel W. Shuman, Mental Health Professional Expertise in the Courtroom, in LAW, MENTAL HEALTH AND MENTAL DISORDER 40 (Bruce D. Sales & Daniel W. Shuman eds., 1996).

[FN17]. Bruce D. Sales & Daniel W. Shuman, Reclaiming the Integrity of Science in Expert Witnessing, 3 ETHICS & BEHAV. 223 (1993).

[FN18]. See, e.g., ALAN A. STONE, LAW, PSYCHIATRY, AND MORALITY (1984); ISAAC RAY, A TREATISE ON THE MEDICAL JURISPRUDENCE OF INSANITY (1938); Paul S. Appelbaum, The Parable of the Forensic Psychiatrist: Ethics and the Problem of Doing Harm, 13 INT'L J. LAW & PSYCHIATRY 249 (1990); Seymour L. Halleck, The Ethical Dilemmas of Forensic Psychiatry: A Utilitarian Approach, 12 BULL. AM. ACAD. PSYCHIATRY & LAW 279 (1984); Henry C. Weinstein, How Should Forensic Psychiatry Police Itself? Guidelines and Grievances: The AAPL Committee on Ethics, 12 BULL. AM. ACAD. PSYCHIATRY & LAW 289 (1984).

[FN19]. Gary I. Perrin & Bruce D. Sales, Forensic Standards in the American Psychological Association's New Ethics Code, 25 PROF. PSYCHOL.: RES. AND PRAC. 376 (1994).

[FN20]. 245 JAMA 2187 (1981).

[FN21]. 47 AM. PSYCHOLOGIST 1597 (1992).

[FN22]. American Academy of Psychiatry and the Law, Ethical Guidelines for the Practice of Forensic Psychiatry (1989); Committee on Ethical Guidelines for Forensic Psychologists, Specialty Guidelines for Forensic Psychologists, 15 LAW & HUM. BEHAV. 655 (1991) (Approved by vote of American Psychological Association Division 41 and the American Psychology-Law Society); American Psychological Association, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 AM. PSYCHOLOGIST 677 (1994).

[FN23]. American Psychiatric Association, News Release No. 95-25, July 20, 1995.

[FN24]. Dr. Grigson's notoriety comes not only from his testimony but from his participation in the trials of Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), and Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983). These opinions have shaped the admissibility of psychiatric testimony presented in Texas capital murder trials. Based on my experience, no other witness has generated such controversy.

Fuller v. State, 829 S.W.2d 191, 212 (Tex. Crim. App. 1992) (Baird, J., concurring and dissenting).

[FN25]. 463 U.S. 880 (1983).

[FN26]. Budwin v. Am. Psychological Ass'n, 24 Cal. App. 4th 875, 29 Cal. Rptr. 2d 453 (1994).

[FN27]. Patricia Ann S. v. James Daniel S., 190 W. Va. 6, 435 S.E.2d 6 (1993).

[FN28]. 435 S.E.2d at 10 n.3.

[FN29]. 463 U.S. 880 (1983).

[FN30]. The Principles of Medical Ethics, With Annotations Especially Applicable to Psychiatry § 7(3), p. 9 (1981).

[FN31]. 463 U.S. at 903.

[FN32]. Guidelines for Child Custody Evaluations in Divorce Proceedings, supra note 22, at 677.

[FN33]. Patricia Ann S. v. James Daniel S., 190 W. Va. 6, 435 S.E.2d 6 (1993).

[FN34]. 512 N.W.2d 723 (N.D. 1994).

[FN35]. Rule 1.7-ABA Model Rules of Professional Conduct (1995).

[FN36]. See Stuart A. Greenberg & Daniel W. Shuman, The Conflict Between Therapeutic and Forensic Roles, 28 PROF. PSYCHOL.: RES. & PRAC. 50 (1997); Kirk Heilbrun, Child Custody Evaluation: Critically Assessing Mental Health Experts and Psychological Tests, 29 FAM. L.Q. 63 (1995); Robert I. Simon, Toward the Development of Guidelines in the Forensic Psychiatric Examination of Post-traumatic Stress Disorder Claims, in POST-TRAUMATIC STRESS DISORDER IN LITIGATION: GUIDELINES FOR FORENSIC ASSESSMENT 31 (Robert I. Simon ed., 1995); Larry H. Strasburger, Thomas G. Gutheil & Archie Brodsky, On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness, 154 AM. J. PSYCHIATRY 448 (1997). See also Institute of Electrical and Electronic Engineers Code of Ethics (Members of the IEEE agree "to avoid real or perceived conflicts of interest whenever possible and to disclose them to the affected parties when they do exist.") Id. at 2.

[FN37]. Ethical Guidelines for the Practice of Forensic Psychiatry:

A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.

American Academy of Psychiatry and the Law, Ethical Guidelines for the Practice of Forensic Psychiatry (1989).

[FN38]. Specialty Guidelines for Forensic Psychologists (IV.D.):

(1) Forensic psychologists avoid providing professional services to parties in legal proceedings with whom they have personal or professional relationships that are inconsistent with the anticipated relationship.

(2) When it is necessary to provide both evaluation and treatment services to a party in a legal proceeding (as may be the case in small forensic hospital settings or small communities), the forensic psychologist takes reasonable steps to minimize the potential negative effects of these circumstances on the rights of the party, confidentiality, and the process of treatment and evaluation.

Committee on Ethical Guidelines for Forensic Psychologists, Specialty Guidelines for Forensic Psychologists (IV.D.), 15 LAW & HUM. BEHAV. 655 (1991) (Approved by vote of American Psychological Association Division 41 and the American Psychology-Law Society).

[FN39]. 1994 U.S. Dist. LEXIS 5296 (N.D. Ill.), rev'd on other grounds, 50 F.3d 428 (7th Cir. 1995).

[FN40]. Id. at 9.

[FN41]. A psychologist refrains from entering into or promising another person, scientific, professional, financial, or other relationship with such persons if it appears likely that such a relationship reasonably might impair the psychologist's objectivity or otherwise interfere with the psychologist effectively performing his or her functions as a psychologist, or might harm or exploit the other party.

47 AM. PSYCHOLOGIST 1597 (1992).

[FN42]. The Commentary to the APA Ethics Code notes:

The current Ethics Code proscribes entering into multiple relationships based on a threshold defined as appearing likely that the relationship reasonably might lead to the feared problems. The risks of concern are stipulated as impaired objectivity on the part of the psychologist, other interference with the psychologist's effective performance, harm to the other party, and exploitation of the recipient of the psychological services. It highlights the need for psychologists to be sensitive not only to the dangers of loss of objectivity on their part, but also to the possibility of other potential sources of decreased effectiveness, as, for example, changes in how the other party may hear and function in the context of the original professional relationship that predated the professional relationship, resulting in less successful outcomes.

MATHILDA B. CANTER ET AL, ETHICS FOR PSYCHOLOGISTS: A COMMENTARY ON THE APA ETHICS CODE 48 (1994).

[FN43]. Those incorporating the AMA code include: Haw. Rev. Stat. Ann. § 453-8 (1995); Ohio Rev. Code Ann. § 4731.22 (Anderson 1995). Those incorporating the APA code include: Ala. Code § 34-26-3 (1995); Miss. Code Ann. § 73-31-21 (1995): N.C. Gen. Stat. § 90-270 (1995).

[FN44]. 293 F. 1013, 1129-30 (D.C. Cir. 1923).

[FN45]. 113 S. Ct. 2786 (1993).

[FN46]. Id. at 2796.

[FN47]. See, e.g., Elizabeth F. Loftus, Experimental Psychologist as Advocate or Impartial Educator, 10 LAW & HUM. BEHAV. 63 (1986) (arguing for a Darwinian approach in deciding the proper role of the experimental psychologist expert in which "[e]ach individual can decide what strategy best suits him or her, and let the survival of the fittest expert prevail.") Id. at 77.

[FN48]. 463 U.S. 880, 901 (1983).

[FN49]. Id.

[FN50]. Daniel Shuman & Bruce Sales, Reconstructing the Admissibility of Scientific Evidence: Distinguishing Expert Testimony Based Upon Clinical Judgment and Research, PSYCHOLOGY, PUBLIC POLICY, AND LAW (forthcoming 1998).

[FN51]. Donald N. Bersoff & Peter M. Koeppl, The Relationship Between Ethical Codes and Moral Principles, 3 ETHICS & BEHAV. 345, 348 (1993).

[FN52]. Shuman, supra note 3, at 205.

[FN53]. Cynthia B. Schmeiser, Ethical Codes in the Professions, EDUCATIONAL MEASUREMENT: ISSUES AND PRACTICE 5, 7 (Fall 1992). This survey included, among others, the codes of the American Bar Association, American Institute of Certified Public Accountants, American Dental Association, American Psychological Association, American Medical Association, and American Bankers Association.

[FN54]. DANIEL W. SHUMAN, PSYCHIATRIC AND PSYCHOLOGICAL EVIDENCE ¶¶ 6-12 (2d ed. 1994).

[FN55]. American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, 47 AM. PSYCHOLOGIST 1597 § 1.17 (1992).

[FN56]. "[F]unctioning in the adversary system of the legal process creates inescapable professional tensions and conflicts." Henry C. Weinstein, How Should Forensic Psychiatry Police Itself? Guidelines and Grievances: The AAPL Committee on Ethics, 12 BULL. AM. ACAD. PSYCHIATRY & LAW 289 (1984).

[FN57]. MANFRED GUTTMACHER & HENRY WEIFHOFEN, PSYCHIATRY AND THE LAW (1952).

[FN58]. Joe S. Cecil & Thomas E. Willging, Federal Judicial Center, Court- Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706 (1993); Anthony Champagne et al., The Problem with Empirical Examination of the Use of Court-Appointed Experts: A Report of Nonfindings, 14 Behav. Sci. and Law 361 (1996).

[FN59]. Bernard Diamond, The Fallacy of the Impartial Expert, 3 ARCH. CRIM. PSYCHODYNAMICS 221 (1959).

[FN60]. Daniel W. Shuman, The Use of Empathy in Forensic Examinations, 3 ETHICS & BEHAV. 289 (1993).

Part 3 - Practice Tip Articles of Interest

Lawyers Weekly USA

September 06, 1999 Cite this as Page: 99 LWUSA 828

Section B Story:

Five 'Silver Bullet' Questions For Opposing Experts

By Christa Zevitas

During the first 10 of his 25 years as a litigator, John F. Romano developed what he calls "five silver bullet questions" to use when deposing opposing expert witnesses. For the past 15 years, Romano has used these questions every time he has deposed an opposing expert, and he says that they never fail to get him information that bolsters his case.

Romano, is former head of the Academy of Florida Trial Lawyers, the Southern Trial Lawyers Association, ATLA's criminal law section and the Washington, D.C.- based National College of Advocacy. He has lectured nationally on trial advocacy, litigation techniques and demonstrative

evidence, is the author of the textbook Strategic Use of Circumstantial Evidence and currently edits The Trial Lawyer.

Romano is a fellow of the International Academy of Trial Lawyers in Minneapolis. He spoke to Lawyers Weekly USA from his' office in Lake Worth, Fla.

Can you explain the overall goal of your silver bullet questions?

They usually either give you the answers you want so that you can use those answers in front of a jury or they lead you to information that you can later develop and use during trial. They also help you settle cases in your client's favor because the opposition sees what's happening and understands that their risks are, little by little, increasing.

The risks increase because these questions generally: