Proposed: Expert Witness Code of Ethics

Comment submitted by Floyd on 11/5/2009 3:01:11 PM:

Do personal financial ethics apply to the "expert" hired for their "integrity" ? What of chronic deadbeats that use the legal system to steal services of victims while hiding behind the "ethical integrity" implied by the professionalism and code of ethics of expert witness profession. Transparency and disclosure (of individuals) is necessary to prove no lack of character, integrity.

Comment submitted by Ben L. on 2/11/2009 6:01:59 PM:

I understand your view, but I oppose an ethics code for the same reason I don't move into neighborhoods that have "community watch" signs up. It implies a problem exists. There are a small number of hired guns out there and they should not be considered part of our profession. We have no way to enforce violations, unless we require liscensing of experts. I would support an effort to liscense experts but the bar would have to be high.

Comment submitted by Mark B. on 2/10/2009 9:48:21 PM:

Perhaps we are not agreeing on what the word impartiality means here. IMHO, honesty and impartiality are not the same thing but very different things. If I provide honest expertise to retaining counsel, especially if that expertise is proactive, that to me is being partial since I am not providing the same service to opposing counsel. Again, I would like to stress that in our current system, we fulfill two separate jobs. The first is to act as expert witness to the court. This job one may argue should be impartial. But we also fulfill another important and necessary job as well. We provide expertise to retaining counsel, to help retaining counsel succeed in their adversarial responsibilities. As such, we have a responsibility to use our expertise to review and detect flaws not only in retaining counsel's positions but also in opposing counsel's positions and opposing counsel's experts. We have the responsibility to educate and inform retaining counsel but not opposing counsel. These are all acts of partiality. As experts to counsel, we are necessarily part of the adversarial process. But again, for either part of our job, honesty and truth as we see it are required foundations.

Comment submitted by Claude R. on 2/10/2009 4:22:37 PM:

The English have rather extensive rules that are provided to all who agree to serve as experts in cases to be tried in that system. We might profitably borrow from them.

Comment submitted by Stephen H. on 2/10/2009 2:19:11 PM:

I disagree with Mark B regarding an expert witness's impartiality. If our opinion is not honest and impartial, what good are we? Once you accept the appropriateness of partiality, it is easy for the opposing counsel to impugn the expert's opinion. As we all know, defense attorneys are ethically bound to provide the best possible defense of their clients, consistent with their obligations as officers of the court. And prosecutors are ethically bound to pursue the outcome they believe to be appropriate. The adversarial nature of this system is designed to bring out the truth, through discovery, testimony, and argument. But this adversarial property should not apply to expert witness testimony. The counsel retaining an expert has some flexibility in deciding how to use the expert's report and conclusions. I don't think the expert should have this kind of flexibility in the rendered expertise. As I commented about the attorney's version of these rules, underpinning the ethics issue regarding an expert witness's impartiality is this very practical consideration: An attorney should be interested in potentially adverse opinions from the retained expert as a source of intelligence regarding what ammunition the opposing side has. If the expert is partial to the client's case, he or she can't perform this valuable function.

Comment submitted by Chuck S. on 2/10/2009 2:02:40 PM:

Regrettably, the proposed code VI Professionalism, A. is wistful thinking. I've been opposite so-called "experts" who clearly do not have the necessary credentials or experience to testify. As a rule the courts won't qualify an expert but rather, they defer to the wisdom of the jury who is the least equipped to evaluate the qualifications in any depth. Hence, "guns for hire" remain a part of the American litigation process.

Comment submitted by One of those hired guns on 2/10/2009 1:52:27 PM:

When the day comes that the Court must routinely hire its own expert, and that expert's opinion on claims construction is used in the Markman, that's the day both sides will stop hiring expert shills. Experts ought to be working for the court and not either side.

Comment submitted by Gustav H. on 2/10/2009 1:02:03 PM:

"An expert witness shall present a complete and unbiased picture of the research relevant to the case and to the expert's opinions." I don't see how it is possible, nowadays, to present a COMPLETE picture of research on any subject.

Comment submitted by William R. on 2/10/2009 12:13:09 PM:

I still have copies on file of a very comprehensive code of ethics published by the now-defunct National Forensic Center. Looks similar.

Comment submitted by Mark B. on 2/10/2009 10:44:45 AM:

I would strongly question the clauses on impartiality. In our legal system, the job of expert witness has two responsibilities, one is a witness to the court, and I can certainly understand arguments of impartiality within that scope. BUT we are also hired as experts for a specific client, and that cannot and should not be impartial. One of the foundations of any work ethic is a responsibility to the employer. Generally, we are not hired by the courts but instead we are hired by one party in an adversarial environment. As such, we owe certain responsibilities to that client that we do not extend to the opposing client. To repeat, we are hired to be experts as well as to be witnesses. Providing expertise is much more than just providing information, it is the act of understanding the clients problems, and then providing proactive insight and understanding and yes, even solutions, into specific technical or complex issues involved in a case. Many times, this is the more valuable service that we provide. And this is definitely not an impartial service. Perhaps there is a need in our legal system to separate the services of expert witness from the services of expert advocacy. But we don't have such a system (I'm curious if such a division might exist in other legal systems). As such, our ethical responsibilities of impartiality are very limited, and apply only to the witness aspect of our work. I would therefore suggest that it is honesty to both the court and to our clients that is the foundation of our ethical responsibilities as expert witnesses, not impartiality. Mark

Comment submitted by Paul B on 2/10/2009 10:09:39 AM:

Dick H's comment is on the money. In legal cases, I ALWAYS work against a retainer. Too often, the client is slow to pay or is not happy with an analysis that goes against his legal case; a client may sometimes delay a payment or even not make payment as a way of pressuring an opinion to his favored direction. The key word here, though, may be 'nonrefundable.' Unless otherwise contracted with clear stipulations, I will always refund the dollar value of unused hours remaining on a retainer. You have to recognize that sometimes things just don't work out between a client and an expert because their views are so different. It's the client's right to say, 'I've had enough,' as long as he's paid for what he's gotten. FWIW, I'd like to see IMS publish various expert services client agreements, which could serve as reasonable templates for all experts.

Comment submitted by Dick H. on 2/10/2009 9:11:12 AM:

My only "small" quarrel is Fees - C. When I take an assignment, I clear my decks to concentrate on best addressing the meshing of my knowledge with the facts of a case. Too often, the sides are also working on a settlement. In those instances, I find myself having to really play catch up with normal consultation assignments. My answer is to secure a non-refundable retainer against billings sufficient to cover anticipated billings through expert report completion and submission. Why is this any kind of ethics conflict?

Comment submitted by Jonathan F. on 2/10/2009 9:05:58 AM:

I receive your Newsletter. Developing a Code of Ethics for Expert Witnesses is important and elevates their standing, commitment, and integrity. I would support this effort. Let me know what I can do to help. Good luck!

Comment submitted by John F. P.E. on 2/10/2009 9:04:59 AM:

Wonderful. Now how do we promulgate and enforce these.

Comment submitted by W D Neal on 2/10/2009 7:35:06 AM:

That's a very good start. Seems like all the major issues are covered with a reasonable degree of specificity. Some refinements may be necessary. I'm going to read this document in detail and consider submitting changes as soon as I can find some time. However, I think the key issues is how do you get such a code of ethics proliferated throughout the profession and widely accepted by BOTH the courts and legal professionals.