Proposed: Expert Witness Code of Ethics

Comment submitted by Erik K. M., M.D. (an expert) on 3/14/2011 10:49:54 AM:

This article begins with the presumption that attorneys and experts are intrinsically ethical. That has, in my experience relative to expert witnesses often been a very questionable assumption. "Expert shopping" certainly takes place and in examination of testimony by some of my more visible and active colleagues demonstrates advocacy, inconsistency of conclusions between similar situations, testimony/conclusions that appear to hew close to the needs of the client, and fee structures that certainly can be proposed to constitute strong potential for conflict of interest relative to the provision of opinion and testimony. While I know ethical witnesses and attorneys, I find strong correlation between my discomfiture with a given rationale for opinions rendered and the existance of practices where there is financial incentive, especially where persons derive their primary source of income from testimony helpful to a client. In cases where there is significant controversy, with multiple experts on both sides, it is scientifically not feasible to propose that by sheer coincidence each of the opposing attorneys has by random choice at the first instance found an expert whose testimony so perfectly fits his/her needs. We need expert testimony, but we need to find methods to reduce the incentive to drive opinions towards an anticipated conclusion. Do I have a magic answer to the problem? Most assuredly not, but I certainly recognize the need for significant improvement and the need to remove from expert testimony the appellation of "cottage industry"

Comment submitted by James R on 10/24/2010 11:24:43 AM:

I have never not been paid for my expert services and in a number of cases I have had to tell the attorney things he did not want to hear. In the final analysis, they really want to know if they have a winning case or not and they want to know what the experts on the other side can saw. When I sense that the attorney is looking for a courtroom performer, I don't pursue it and the attorney understands too. So I don't get into those situations. Sometimes, I think the attorneys think we are actors not experts..

Comment submitted by J.P. on 9/22/2010 8:32:51 AM:

As a licensed, practicing, professional engineer (PE) and Adjunct Professor of Chemical Engineering, this is a topic that I live by and stress to my senior chemical engineering students as they prepare to enter the engineering workforce. The topic of ethics seems so obvious to me, but one area of interest might be ethics in engineering education. One of my organizations, the American Institute of Chemical Engineeers (aiche.org), has a code of ethics http://www.aiche.org/About/Code.aspx and we also have other free information regarding manufacturing safety and health that compliment the topic of ethics. Another of my organizations, the National Council of Examiners of Engineers and Surveyors, NCEES, also has ethics requirements built into the national PE certification program for all engineers. Finally, the Accreditation Board for Engineering and Technology (abet.org) requires the teaching of ethics in the curriculum for accredited schools of engineering. So we engineers are certainly pushing ethics on the education and certification front to help prepare young professionals for a life of service to society and industry as well as keep our practitioners mindful of their duty. Having said all that, your newsletter is still important in reminding all of us of our duty to society at large and truth always, for all who hold themselves out as experts.

Comment submitted by K. Z., PhD on 9/21/2010 1:25:30 PM:

I found these guidelines very informative and helpful. Thank you for compiling and sharing it with us.

Comment submitted by Paul G. on 9/21/2010 10:46:58 AM:

Now that you have a revised code of ethics please make it available as a pdf so we can all keep a copy Thanks

Comment submitted by Hans on 9/10/2010 2:46:45 PM:

I like the proposed code of ethics and suggest we all adhere to it.

Comment submitted by Ethan on 9/9/2010 4:06:10 PM:

As someone new to the arena of expert witness, I find the concept of an Expert Witness Code of Ethics both noble and problematic. I think the discussions that followed highlight this. Some experts view themselves as people of integrity and honesty who would abide by such a code, while others suggest it is impossible to shake the notion of "liars for hire"; or worse, see that as what an expert witness is. For me the only true way would be to stay fair and impartial, with a clearly defined role of service to the court, despite having been hired by a particular law firm. Another question: can there really be an infallible expert? As one with dozens of years in advertising and marketing and with many years also in specialty retail, I live in a world of raging opinions with a paucity of hard knowledge. Some combination of experience, intuition and the ability to read the zeitgeist is where the real experts in my line of work find sustenance. Perhaps there is more certainty in things like metallurgy or traffic management, but don't you often find yourself listening to rival experts? I was sympathetic to one of the respondents who felt being paid directly by the client was a way to influence him/her toward a favorable outcome for the client. Another raised the question of competing offers while awaiting a hiring decision. Interesting stuff. I'm sure I'll continue to gather knowledge from the BullsEye Newsletter.

Comment submitted by Jack on 9/9/2010 12:31:18 PM:

I have a simple rule. If I am asked to be an expert witness in a case in which I am interested, I ask to see the major documents in the case to see if I want to I help the side that is soliciting me. If not, I say “thank you, no”. If my answer is yes, I support the client that retains me, while adhering to common standards of professional integrity.

Comment submitted by anon on 9/9/2010 12:04:53 PM:

1. I only agree to help the innocent party. 2. There is another type of ethics. Recently there was a rash of patent infringement suits by one person. I was approached by an expert witness broker to be a potential candidate to help a law firm for the defense. On my own I spent three hours and found enough evidence for prior art and prior patents that would have the supposedly infringed patent invalidated. I did not get the case. I suspect that the witness who did, and also the attorney for the defendant, charged hundreds of hours for the same information.

Comment submitted by GEL on 9/3/2010 3:34:05 PM:

An expert for a litigant has a key role that is fundamentally different from an expert for the court. That is to identify what claims or arguments NOT to pursue because they may be futile or dangerous to the client's interests. Unfortunately, the expert's advice is usually provided to the client's attorney rather than to the client and advice to abandon a portion of a case will often conflict with the attorney's interests (i.e. billable hours). Dickens' "Bleak House" is still with us.

Comment submitted by Frank C. on 9/2/2010 1:30:26 PM:

I have only worked on 10 EW cases. In each case I was convinced that the position that I was taking was correct. Otherwise I would have not taken the case. In some cases I have had serious discussions on what I could say and the broadness or narrowness of the proposed question. In one instance, where I disagreed on what could be done by certain laboratories to assist in the case, the lawyer arranged for a highly regarded Expert to contact me and walk me through what their laboratory could do, convincing that the proposed work was reasonable to request. In other instances, I argued with the attorneys regarding certain wording and until I was satisfied that they represented my truthful opinions. I would never change sides if my opinion changed. I would ask to be excused, explaining that I could not present honest testimony in the case.

Comment submitted by J. J. M. on 9/1/2010 8:09:05 AM:

I serve as an expert in certain types of patent disputes. As such the following comments pertain specifically to this field although I suspect they apply more broadly. The Court and the litigants are both entitled to hire experts. Their roles differ. While their need to maintain high ethical standards are the same what is ethical in one role can differ from that in the other. An expert appointed by the Court must provide both an educational role and a fact finding role. While ethical standards require that he not to take sides, few are capable of fully meeting this standard. Nevertheless the expert does not find himself so intellectually conflicted that he is unable to properly interpret technical arguments for the court. An expert hired by a litigant is usually viewed as an advocate of his employer regardless of his actions. He can easily be intellectually conflicted even though his advocacy has clear ethical limits. Such an expert is under no obligation to seek out facts that support the other side, but in providing an opinion he is ethically bound to consider all the facts regardless of how they were discovered. Of course "facts" are frequently nuanced and subject to interpretation. It is here that the expert ethical standards are most severely tested. The "facts" often can be interpreted differently depending on the meaning of a single word. An ethical expert will attempt to understand the writers intent, but all too often experts will play the role of Humpty Dumpty in Alice in Wonderland and make the word mean exactly what the expert intends it to mean, no more and no less. Any set of ethical standards should include a statement that it is unethical to try to interpret language to mean other than what the expert believes was intended and thereby offer a biased interpretation of a fact. In interpreting facts a technical expert is ethically bound to use prevailing scientific opinion rather than interject his own personal bias or a bias intended to support a certain point of view. I have seen this happen repeatedly by experts who understand full well that their comments are misleading. Advocacy includes helping the attorney develop arguments consistent with the facts as interpreted in an un-bias fashion. It is not ethical to cherry pick the facts to fit the attorney's needs. It is also not ethical to withhold information from your attorney, even if it may be detrimental to the case. However there should be no requirement to voluntarily provide such information to the court. Arguably it would also be ethical to provide an opinion based only on a selection of readily available information that is favorable to your side, but if you do you stand a chance of all of your testimony being discredited. Switching sides. Once you sign on you are ethically bound to continue or resign without switching sides. Prior to signing you have the right, I would argue the obligation, to make a preliminary assessment of the merits and only agree to be employed if you find you can be a true advocate. If not you should be free to join the other side if asked.

Comment submitted by Isaac O. on 9/1/2010 8:07:36 AM:

It is rather simple for me, - Be loyal to who is paying to you, - Stay with your own true scientific/technical conclusions and judgments. Express them honestly. - Be factual, not hypothetical.

Comment submitted by Anon2 on 8/31/2010 6:27:35 PM:

All the previous comments reflect experiences I have had. One that stands out is a lawyer who insisted I do the work and he will pay after the case is concluded. When I objected on the basis of inpartiality--the importance of not being vested in the outcome--he was angry. And persisted. And when I raised the ethical issue he was furious. Another lawyer wanted the client to pay me directly which, of course, could damage the impartiality. I refused. He had the first invoice paid by the client and I returned the check. As for me, I would not switch sides. I believe in helping the attorney who represents someone who is unjustly accused or victimized in another way. This is not being partial because I will point out the weaknesses in the case, if applicable, and will not accept a case that appears to me to be frivolous, regardless of how much money they offer me. And I am not wealthy enough to readily reject a case, other than on principle.

Comment submitted by Guy B. on 8/31/2010 3:02:52 PM:

Another thing that kind of gravels me is when the lawyer wants me to make the client responsible for my fee. The result is that I am chasing the client down to collect. I won't do it anymore.

Comment submitted by j sell cpa on 8/31/2010 2:49:21 PM:

i have observed the conduct of both ethical and unethical attorneys over the past 40 years. Opinion shopping and opinion manipulation are a fact of life for the expert witness. it is not just a problem for the expert witness, it is a problem for the ethical attorney. Unfortunately, until unethical attorneys are held accountable for their conduct by the courts and bar associations the practice will continue. My proposed solution would we for the attorneys to be sworn in just as witnesses are. The second shoe would be for the courts to actually penalize attorneys for perjury and unethical conduct. While I believe unethical attorneys constitute a small minority, they are tolerated by the system. as long as they can act with impunity we will never have a real solution to the problem.

Comment submitted by Guy B. on 8/31/2010 2:29:27 PM:

I know the fear is that this will create a standard of care issue but I think the issues deserves discussion. As an expert myself, one of the issues you haven't addressed is when is an expert needed. I see case after case, where the attorney should have hired me upfront, but waits until just before trial. Too late for me to really do my job well; e.g. help set the claims, help with depo questions, etc. And, maybe if the other side would have understood sooner (like during mediation) what I was going to say, maybe it would have settled. What do others think??

Comment submitted by Anonymous on 8/31/2010 2:25:15 PM:

This is a good start. What is really needed however are courts that recognize their lack of technical and patent skills. Many Judges have no technical skills or training whatsoever and very limited patent law knowledge. Some even show bias for the expert with the best educational background (e.g. PHD) and against the more competent expert that has worked for years in the field but doesn't have the educational degrees. In my view that is the biggest problem with the US expert witness system.

Comment submitted by Anonymous on 8/31/2010 2:07:55 PM:

I have done literature searches for generic pharmaceutical firms, searching both the journal literature and patents. In the reports I wrote I have included my recommendations for specific approaches to formulation problems. Subsequently I have been contacted by law firms to serve as an expert witness in cases involving some of these pharmaceutical agents. I have declined on the basis that it is possible that my correspondence related to the agents may be dicoverable. Am I correct?

Comment submitted by Dan R. on 8/23/2010 7:44:49 AM:

I think this is an excellent start. All of the points are valid and well-stated. I also strongly agree with the clauses pertaining to "Expert Impartiality" and the statement that "An expert shall accept only engagements that are within the expert's area of competence and training". These are key of this proposal.

Comment submitted by Anonymous on 8/18/2010 9:48:37 AM:

I've had unpleasant the experience of having to tell a client that the defendant that they were claiming had infringed their patent, that this same defendant had actually created prior art (a fact to which I would have to testify in court) and that fact may invalidate their patent (a legal conclusion that I would not be qualified to make). The legal firm that had retained me made it very uncomfortable for me, discontinued my services, and did not pay my entire fee. Nevertheless, the facts are the facts, and as the Tau Beta Pi creed goes, your testimony has to be the same for plaintiff and defendant.

Comment submitted by anon on 8/17/2010 4:00:13 PM:

I am never sure if other experts that I encounter are not competent or just miss the mark and do not get to the root cause of the issue. There are some experts who are very predictable and always say that the product was defective which is not always the case. They also often say it was defective for the wrong reason. I saw one expert say in a deposition that he did not care how the accident occurred. There are areas that do not seem to fall under any code of ethics. Most state and provincial engineering societies have codes of ethics that are generally not enforced in this country.

Comment submitted by anon on 8/16/2010 2:16:29 PM:

I also disagree with the concept of experts being "hired guns". Unfortunately, I am seeing way too many situations where that is exactly what is going on. The long term negative effect of this will be that expert opinions will have less value even when honestly and fairly rendered. Frankly, I have seen and continue to see behavior that is pretty embarrassing. What is surprising (to me at least) is that it does not correlate with an expert's experience level. One would think that a first-time expert might easily be guided by attorneys into this behavior mode, but I see the same level of "crossing the line" among experts with many cases under their belts. Some even seem to thrive on what they must perceive as "playing an intellectual game" with the court. Creating completely new "scientific" concepts and definitions that are intended to confuse and obfuscate is a part of this game. The good news is that when the rulings are made it very seldom succeeds. I suppose that is a credit to the capability of judges to see through this game playing. Nevertheless, I would feel much better if I didn't need to cringe quite so often when observing testimony by some of my opposing expert colleagues. Keeping a level of intellectual honesty and integrity would serve the entire expert witness community better. But perhaps I'm asking for too much.

Comment submitted by anon on 8/16/2010 1:59:39 PM:

I believe that an expert witness should always be truthful regardless of who is asking the questions. However, if I were an expert witness, I might be more inclined to provide additional information that could help the side I am working for.

Comment submitted by Anon on 8/13/2010 10:15:39 AM:

I especially appreciated the discussion of how much the client attorney should “massage” the expert’s report. I’ve been fortunate in working with attorney’s whose questions about the report’s content helped me to clarify the text. I certainly don’t think that the attorney should do more than that. One of the qualifications of an expert witness, I believe, is the ability to write clearly and coherently, and as objectively as possible. That report is a part of the attorney’s total “story” but shouldn’t be crafted as a story itself.

Comment submitted by Anon on 8/12/2010 4:27:46 PM:

Very interesting discussion. For my own part, I am constrained both by personal ethics and professional practicality. I am a teacher and a scholar. My opinions in litigation must meet the same level of self-scrutiny as does my academic work. Moreover, my litigation opinions must be consistent with the positions I espouse in my academic work.

Comment submitted by Anon on 8/12/2010 3:49:36 PM:

Unfortunately most expert witnesses are hired guns. Most important however most alleged experts are not true experts ie they may have a background in the area they are alleged to be an expert in but they lack academic credentialing in the area .

Comment submitted by Anon on 8/12/2010 3:26:20 PM:

Ethics should always be at the forefront of every expert witness’s mind in providing testimony. As a consultant for over 15 years, it is critical that all interactions and business be conducted in an ethical manner. Expert witnesses are essentially “hired guns” in the popular vernacular, however the popular definition of a hired gun includes the assumption that the individual will do anything to support the position of the counsel who hired them. Furthermore it is assumed that if they testify for a defense team one day it is impossible to “switch sides” to testify in a similar case for the prosecution. Not so. The expert has been hired to provide a more detailed understanding on some topic where they have first-hand, in depth experience. They (ethically) should not “bend” the truth or provide anything less than unbiased opinions. From that perspective, it is easy to understand how an expert witness could testify for either the prosecution of defense. Of course, the problem is opinions vary even among experts and that can lead to reinforcement of the “hired gun” perception.

Comment submitted by ATW on 8/12/2010 2:54:56 PM:

More years ago than I wish to consider, my favorite professor found himself on the stand opposite a well-known expert, whose textbook he used in one of his courses. At issue was whether or not the material that the Company had chosen for a particular product was suitable / adequate / acceptable for that particular application. To my professor (and incidentally to me) it was clearly a poor choice, intended to minimize cost - at the risk of injury to the user of the product. To the textbook author the choice was justified because the product had a "relatively" low failure rate. The professor pointed out that similar products, made of more competent (and costly) material, had far lower failure rates - approaching zero. Failure of this product entailed significant risk of personal injury, not just a broken widget. The ethical question becomes something like, "How good does it need to be"? Must the manufacturer minimize risk no matter the cost, or is it acceptable to balance the cost (and profit) associated with all the widgets made and sold, against the cost of settling damage/injury claims brought by those whose widgets failed? I do not think this is a question the expert witness should explicitly address. S/he should clearly explain how and why the widget broke, and the extent to which the material properties contributed to the failure – but in the case of my professor versus the textbook author, this judgment call was a crucial issue. The Company settled rather than let the jury decide whether or not they were liable for the injury (and open the door to more claims). The proposed code of ethics is cute - but there are no teeth for enforcement. One of those who left comments made a good point: when it is time to write such a code, the situation has probably deteriorated too far for it to do any good. Those who behave ethically will do so, and those who wish to "cheat" will find a way.

Comment submitted by Anon on 8/12/2010 2:05:16 PM:

A topic I am interested in, as an expert, is how to manage the process of being hired. The issue is that the process can take quite a long time (sometimes months). And during that time, when I do not have any strong reason to think I will or will not get the case, I am approached with another opportunity that conflicts with the first opportunity. No confidential information has been exchanged, and the second opportunity may be preferable to the first one. Am I obligated to turn down the second opportunity while waiting (indefinitely) for the first one, or may I decline the first one to take on the second? Of course, I can contact the first and ask for more information, but what if none is forthcoming? Similar issues occur when handling multiple cases where there are no conflicts of interest, but there may be conflicts of commitment. An existing case may not be able to inform me how much (if any) or when they will need me. A second case may come available that would require significant time commitment. It is difficult to take the second case if it would result in not having enough time for the first case. But that may not be possible to know definitively. What if two cases end up needing me at the same time (say, with trials the same week), as a result of unforseeable delays? In general, advice on managing one's time related to multiple cases would be interesting to me. Firms can manage these risks by spreading requirements across multiple individuals, but it is very difficult as a single, independent expert.

Comment submitted by Anon on 8/12/2010 1:42:01 PM:

Here are some issues that I observe as a struggle. How many times should an expert work for/be retained by the same attorney, before the expert witness may be challenged as to being overly familiar with the same attorney? How much advertising as an expert witness/consultant can be considered too much and cause the expert to be accused of having their opinions for sale? How far should an expert witness, while testifying, go to describing an act/issue as being rediculous vs letting the judge/jury draw a logical conclusion? Some experts will say that testimoney should be kept to saying something along the lines of: The act/issue fell short of the industry standards of care...yet another expert will say: No, I call it like it is, I'll come right out and say that's (whatever 'that' is) rediculous. Which response is better? How much information should an expert/consultant have available on their website,,,,as it relates to possible stolen identification?

Comment submitted by Anon on 8/12/2010 8:28:50 AM:

On the one hand the court system has invited me to give an expert opinion based on the facts as I see them. On the other hand I am hired by a lawfirm and my bills are paid by their client. I would be much more comfortable if the Court hired me; both sides split my fee; I gave my findings to the Court.

Comment submitted by Anon on 8/11/2010 3:11:35 PM:

It is hard to generalize, but statistically I would say that if an "expert" advertises his/her services or uses some intermediary to "get clients" he/she is more likely to be a "liar for hire" than if not. People who are true experts do not advertise, are not interested in making a living by helping lawyers to win cases, but spend most of their time on designing safe industrial plants or in figuring out how to improve designs to prevent accidents from reoccurring. In short, real experts spend a minor part of their time working as expert witnesses. My experience is that most lawyers do not like true experts because the cultural attitude of lawyers is totally different from engineers or scientists. True experts are interested in facts/data and are not interested in the views of technically unqualified and financially motivated lawyers or clients (on either side).

Comment submitted by Anon on 8/11/2010 9:50:17 AM:

We just point out the facts—regardless of who hires us—so we are definitely not hired guns. Plus, I don’t stray from my expertise and have been saying the same thing forever—so no discrepancies. However, we just had our third case that we were asked to be experts on – in my career –that we turned down. We struggled w/ the fact that we believe everyone needs representation BUT the case was such that we did not want to be associated with it. In all 3 cases, that has been exactly the same reason—we did not want our name, brand, reputation associated w/ the cases---so does that leave the individual w/ less than adequate representation? Another very frustrating issue is where the expert is asked for “Mercedes” deliverables (by the attorney to win), but is asked to bill VW prices. This usually is not up front—it usually as the case develops and more is added by counsel—they are great ideas, but one can’t perform for free. What is disconcerting is the fact that opposing counsel may, in fact, ask you on the stand about how billings have gone and were you paid in accordance w/ your time..we won’t lie…so it can be awkward in handling…and we’re good about managing expectations. We want to win for our cases—otherwise we would not take them on. We also won’t take a case on if we don’t believe in it—but winning takes resources.

Comment submitted by Anon on 8/11/2010 9:16:29 AM:

While I haven't done very many expert assignments, and in those I haven't testified -- I was asked to determine how a computer system worked, I do have a personal opinion at least on how I conduct myself in any situation. And that is simply to be honest. Consequently it doesn't matter to me who has hired me or for what purpose; I will investigate what has been requested for the purpose of providing a work product to that customer... for example, if I'm hired to defend against a patent infringement suit, then I'll try to demonstrate prior art or prove the system doesn't infringe, but if I can't (such as if the prior art isn't practicing the invention or the system does infringe) then that's the way it is. I would not personally seek out to be hired by the opposing council (and in fact, this would be a violation of my agreement with the first client anyway).

Comment submitted by Anon on 8/11/2010 8:35:52 AM:

An expert witness must not be a hired gun. A expert is a professional, not a lobbyist. As such the expert should use the highest standards of the profession. I have been told "we will get back to you" on a few occasions when I proved that the facts do not line up with the strategy. Changing sides while actively involved with one side is ethically poor in my view. If however an expert has been told "we will get back to you" and waits a couple of months with no word, then it is more an open question. The passing of strategy from one side to the other should never be done by an expert witness period.

Comment submitted by Anon on 8/9/2010 1:59:52 PM:

I will only make a definite statement if the literature supports me. If the world literature is inconclusive,I will state that fact. At all times,I'll be totally objective,accurate and honest.I refuse to be part of any conflict of interest.

Comment submitted by Anon on 8/6/2010 4:51:28 PM:

I generally agree with the articles though I have to differ on the role of an expert. I agree that an expert should always be honest, but I believe that a role of an expert is to provide assistance to the counsel who has retained him/her. In all the times I have testified I have recognized the facts and how it may help the case. I would agree that if the expert is not comfortable with the facts or the law, then he/she should not testify. As a matter of fact in two of my cases I chose not to testify based on the testimony that the attorney wished me to discuss.

Comment submitted by Anon on 8/5/2010 3:13:53 PM:

I have read the Expert Witness Code of Ethics and the page of postings commenting on them. Generally the code is a good set of guidelines to which experts can and should make themselves adhere. I would go as far as to say that any expert that does not follow these guidelines would be doing themselves and their clients a disservice. I believe that an expert’s services are founded upon two principles 1> An expert is intended to educate the “trier of fact.” 2> Experts form their opinion based on the facts of the case The codification of the first item is present in Rule 702 of the Federal Rules of Evidence (2007) which explains the reasoning for having experts testify; “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert…may testify thereto in the form of an opinion or otherwise…”. Experts on both sides of the case should have the same set of facts from which their opinion will flow. This is the second principle that I mentioned. The filter of that opinion flow is the experience, training and knowledge of the expert. When each expert applies their experience, training and knowledge uniformly and consistently within a case and between cases, the expert can be described as impartial or objective. However, I prefer to characterize those experts as educators. An educator has the same story to tell everyone and does not change it unless the facts underlying it change. Practically speaking there are some basic steps for an expert to incorporate these principles into their own practices 1> Make sure you obtain all relevant documents from the attorney, not just the documents the attorney wants you to see 2> Consider incorporating the request for all documents in your engagement/retainer letter 3> Stop thinking of yourself as supporting a side of a case - rather you are presenting an opinion based on the facts Just because your opinion is supportive of one side or the other doesn’t make you a consultant to that side. You take cases you can support. You decline cases you can’t. It is because your opinion supports one side, that you are retained by that side. Unless you are retained as a litigation consultant and will not testify, you are an educator.

Comment submitted by O R on 8/4/2010 6:04:35 PM:

I guess I found this list to be rather obvious. I have been so impartial, that I have been dismissed from cases by council because my conclusions after reviewing the facts were that the other side had a better chance of winning. Isn't that what they want to know, opinion on the facts? I was indeed approached by the other side once, which I turned down of course, but they had access to my reports via discovery anyway, so I guess they got my opinion anyway. Some attorneys have begun to ask that NOTHING be written down during the research just to avoid this issue. I wonder how ethical that is? I guess while we need to be completely ethical, the attorneys often play by slightly different rules. But I make that clear right up front that if I believe the other side has the better case, I will simple state that. My opinion is not for sale, only my time is.

Comment submitted by Anon on 8/4/2010 4:03:53 PM:

I always tell my clients in advance that I will report the facts to them as I find them. If the facts are favorable to my client, the lawyers are happy. If the facts are favorable to the other side, better that they hear it from me than from the other side in a courtroom. The lawyers’ job then is to find a way to work around the unfavorable facts. Only exception is patent work, where my job is to interpret the patents in the most favorable light for my client.

Comment submitted by E.W. on 8/4/2010 1:48:52 PM:

This Code of Ethics is the ideal, and would work accept for the lawyers. I had lawyers personally attack me during deposition, trying to voir dire me in court, simply stop payment after settlement, severely restrict preparatory work for financial reasons. No recourse on any of this. However, changing sides is unethical regardless.

Comment submitted by Anon on 8/4/2010 9:51:25 AM:

I believe and most of the other experts in my field that I know also believe that ethics is paramount in our work. We enable the evidence to be understood by the court and jury, we are not there to advocate on behalf of any party. This is why I reserve the right to tell a client that I will not be beneficial to their case if I testified in court and my payment is not contingent or linked in any way as to outcome or position to be taken.

Comment submitted by Nake M. K., Ph.D., J.D. on 8/4/2010 8:38:55 AM:

The main function and utility of an expert is to assist judges and jury make informed decisions. As such, he /she must be totally objective and committed to the truth irrespective of who has retained him/her.

Comment submitted by Anon on 8/4/2010 8:35:32 AM:

Is it ethical to change sides for failure to pay fees? For example, suppose Client A retains an expert to provide ongoing testimony over a prolonged period. As the case wears on over time, for whatever reason, Client A either cannot or will not pay the fees agreed upon to the expert. What should the expert do? Here are some options: a. Continue providing testimony in the hopes that Client A will somehow resume payment. b. Immediately discontinue providing testimony for Client A and recuse oneself from all aspects of the case. c. Accept an enticing offer from Client B that may, in fact, conflict with the prior testimony provided to Client A. Personally, I would choose option b; however, it would be interesting to hear other opinions.

Comment submitted by Ron G. on 8/4/2010 6:15:32 AM:

I support such a statement, even if it is idealistic. I also agree with wider use of non-refundable retainers, for the reasons described in previous comments. I think we should clearly separate our roles as consultant and as expert witness. As an expert witness (in reports, depositions and trials), we should provide our expertise as if we were hired by the court. Thr phrase "the truth, the whole truth and nothing but the truth" still applies.

Comment submitted by Anon on 8/3/2010 4:33:09 PM:

My view is rather simplistic. As an expert, you are being paid for confidential advice and/or testimonial information. Confidential advice should be as frank and honest as possible, and if / to the extent that you are called upon to testify (in a report, deposition, court, etc.) you are similarly bound. The truth is the truth, no matter who is paying you for it. I had a case where the mother of a defendant thanked me for standing up for her son as an expert witness. I replied by saying "Don't thank me - all I did was tell the truth." In another case, I explained to an affiant that I didn't care at all about them - I didn't know them. What I cared about was the legal process and giving honest testimony as to the probative issues in the case. And I explain this to my students. If you care about how the case comes out, you should not be acting as an expert on it. You simply cannot do your job this way. As to switching sides, I generally have a contract that prohibits it. Further, if asked, I generally want to offer both sides the opportunity for me to act as a special master with regard to the issues - they can split the costs. But this is essentially never desirable. Finally, we subscribe to the IEEE code of ethics and the code of ethics of the DFCB.

Comment submitted by Anon on 8/3/2010 4:29:16 PM:

I may be a bit paranoid about it, but I don't think I want my comment published as it may give an unscrupulous lawyer ammo to try and shoot me down in court.

Comment submitted by Frank B. on 8/3/2010 3:58:13 PM:

The expert was clearly wrong to provide any opinion directly to opposing counsel. But he should be held liable only if he was contractually obligated not to do so. The attorney was wrong to rely on, or pretend to rely on, the expert's opinion after withholding critical information. Had the attorney already provided the expert's initial report to the opponent? If so, there was no harm done by the expert in so providing the addendum since the attorney was obligated to disclose it anyway.

Comment submitted by Mason D. on 8/3/2010 3:56:44 PM:

Once, in arbitration, I was accused of being an "advocate" by opposing counsel. The Arbitrator, a real pro, stated,"The only time I expect an expert to be objective and impartial is when he or she is appointed by the court". "In a little while,you (the opposing counsel) will be introducing your own expert who will advocate for your position, so don't set an impossible standard for the opposing expert". The point is, that after we, as experts, review and analyze a case and decide to take it (on either side), we become an advocate for that "position" not the client. Thats our job. In that assignment, we must be bound by the truth in offering testimony for that position we advocate, even if its damaging to our side. These are the practical and ethical standards I adhere to.

Comment submitted by Fetzpahs on 8/3/2010 2:34:03 PM:

There is only so much that a biased expert can do.He or she cannot turn a weak position into a strong one without commiting perjury or some chicanery (but I have seen it done, so misleading a judge and jury can happen to an unsavvy attorney or his witnesses). Part of the expert's role is to point out those weaknesses, particularly in civil cases, and advise when a case has glaring holes that make it untenable.

Comment submitted by sunforester on 8/3/2010 12:54:26 PM:

As with all ideals, the day we experts are treated and considered solely as impartial professionals will be the day that all legal actions are done on a level playing field with no undue influence by anything other than the facts of the case. Not all cases are contested on their merits, and although we experts undoubtably must constantly strive to uphold and protect our reputations, our environment is not an easy one in which we can avoid temptations or pressure. Therefore, this proposed Code of Ethics will never be more than an ideal, and thus it can at best be a guideline - certainly it cannot be enforced, and it would be inhumane and unrealistic to create sanctions from it. I have worked on cases where retaining counsel was satisfied with the facts of the case, and being their expert was a pleasure and no challenge to my reputation. There were other cases where I was passed over in favor of other experts who retaining counsel wanted not just an expert but an advocate. Even though I was initially disappointed to lose the client, I was happy I was not put in a position that I would have to later decide how much my reputation was worth to me. Go ahead and post the Code of Ethics. Just don't even try to force reality to conform to it, either now or in the forseeable future.

Comment submitted by sg on 8/3/2010 12:06:10 PM:

Any expert has their reputation to consider, and is most certainly accountable for supporting opinions under cruel cross examination where the case gets to court. Our system is designed to settle cases out of court, so many never make it that far. Our system mandates legal counsel do its best to defend or prosecute their appointed charge - regardless of personal opinion of fault. Experts must be ever vigelent that compensation always has potential effect of scewing victory against justice. Where the facts support client counsel allegation - its easy. Where facts weigh in favor of opposing counsel, experts are obligated the truth and counter arguments that help settle the case expeditioulsy and at least cost to all parties. The key to integrety lay in not ignoring primary facts.

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.