The purpose of these materials, and the vignettes
that accompany them, is to educate lawyers, law students, and
judges about the many issues of ethics and professionalism that
arise in connection with the use of expert witnesses in civil
cases. We hope that they will be useful in law schools and for
continuing legal education and that they will foster discussion
of these important issues.
American jurors frequently must decide complex
technical issues, yet most jurors lack the education or experience
to understand these issues and thereby make intelligent judgments
about them. A primary way in which jurors receive assistance with
technically complex cases is the presentation of expert testimony.
Experts are available to testify about a dizzying array of technical
issues. Although a small percentage of this expert testimony comes
from neutral, court-appointed experts, by far most of it comes
from paid, partisan experts. Lawyers choose and use experts not
in a dispassionate desire to help jurors but in order to increase
their chances of winning, just as those lawyers make numerous
other strategic choices during the course of a lawsuit. Those
choices are to be made within the confines of the rules of ethics.
The Rules of Professional Conduct limit the advocate's strategic
choices because the advocate occupies a difficult dual role as
counsel for a party and as an officer of the court. The use of
expert witnesses, no less than the various other activities of
the litigator, implicates these professional responsibilities.
These materials explore several evolving applications
of the rules of ethics to the use of expert witnesses. The first
is the duty not to bring frivolous litigation or to defend litigation
on a frivolous basis. There is a popular perception that expert
witnesses are like vending machines: put the money in and then
select what you would like to come out. Despite the ability to
find an expert to support any proposition, no matter how far-fetched,
the lawyer has a duty to screen his or her cases and to refuse
to bring those that would depend on junk science. The precise
contours of that duty are still undefined. For example, a lawyer
might bring a case that ultimately will depend upon expert testimony
without hiring an expert at all, or the lawyer might bring the
case solely on the advice of a non-testifying expert. Or counsel
might choose to proceed on the basis of purported expert testimony
that will not, or might not, survive a challenge to its admissibility
under the Federal Rules of Evidence. Under what circumstances
the lawyer has brought "frivolous" litigation is the
ultimate, and thus far incompletely answered, question. Similarly,
a defense lawyer must give careful consideration to presentation
of a technical defense that relies on nonexistent or shaky expert
testimony.
The second type of ethical duty concerns the
lawyer's interaction with the expert witness. Picture the expert
witness not as a vending machine but rather as a ventriloquist's
dummy. The advocate may not falsify evidence and therefore may
not play Edgar Bergen to the expert's Charlie McCarthy. Yet most
experts are not lawyers and will require some legitimate assistance
in connection with their participation in a lawsuit. The tough
issue is when legitimate assistance fades into ventriloquism.
A related issue is how to police the lawyer's interaction with
the expert witness. In particular, adversaries commonly request
drafts of an expert's report in order, among other reasons, to
see if opposing counsel has put words in the expert's mouth. The
expert's notes are requested for the same reason, to see how the
expert's thinking evolved, perhaps under the influence of his
or her patron. Despite the lawyer's duty not to destroy evidence,
it is also common for advocates to counsel or permit the expert
to destroy the drafts and notes that the other side seeks. When
a lawyer's interaction with the expert becomes the falsification
of evidence, or leads to the destruction of evidence, is an open
but crucial question.
A third set of ethical duties revolves around
a lawyer's interaction with an expert consulted, hired or fired
by an adversary. Lawyers have interviewed and hired experts previously
consulted by opposing parties. Some of those lawyers have been
disqualified out of fear that the second firm can buy a peek into
the trial preparation of the first in violation of work product
and related privacy doctrines. That unfair advantage, of course,
may be why the jilted expert was hired in the first place. A corresponding
danger, however, is that a lawyer might take advantage of the
courts' willingness to protect consultations by hurriedly consulting
with all the good experts in order to keep them away from an adversary.
Complications do not end when an expert is retained. Lawyers may
seek to have direct, unsupervised contact with an opposing party's
expert. They may seek clarification of the expert's opinion, or
the contact could have less worthy purposes. The lawyers may try
to trick the unguarded expert into damaging admissions or disclosures.
They may try to influence the opposing expert improperly, such
as by offering to employ the expert in future litigation. The
problems do not all arise from unilateral efforts of lawyers.
Lawyers have raised questions by working together in settlement
to suppress expert opinions. Good experts in multi-party litigation
have been traded (like a hot pitcher in late July) as part of
settlements in order to prevent their testimony from helping non-settling
parties. Each of these scenarios raises difficult ethical issues
about the proper way for a lawyer to have a relationship with
an expert affiliated with an adversary.
These materials, and the companion vignettes,
explore these issues through a series of scenes in a fictional
case. The written materials for each scene begin with a short
synopsis of the scene and the issues it is intended to raise.
The script for the scene follows the synopsis. After the script,
the issues and relevant authorities are discussed.
As issues in litigation become more technically
complex, the use of expert witnesses will continue to grow. So
will the ethical pressures on the lawyers who hire those witnesses.
These materials are an attempt to chart some guidance for the
lawyers who must use or otherwise interact with experts and who
must simultaneously be good advocates and responsible officers
of the court. Lawyers in our adversary system have been performing
this difficult balancing act for a long time. The special problems
concerning expert witnesses are nothing more than the latest occasion
to perform it.
