Ask five lawyers an ethics question about the use of expert witnesses
and you could well end up with five different answers. The problem
is not that the lawyers are uninformed. It is that there is little
formal guidance for them to follow.
We believe
it is time to change that.
Over the past year, we published a series
of articles involving ethics and the
use of expert witnesses. Now, we want to move the conversation a
giant step forward. Today, we present our draft of a code of ethics
for lawyers to follow in using expert witnesses. Next month, we
will offer a parallel draft code for experts.
We hope these drafts will be the opening salvos that will launch
broader discussion and debate among lawyers, experts, academicians
and others. Consider our proposals the start of a conversation, one
that might result in the legal profession's formal adoption of a
clear and concrete set of standards for lawyers and experts to follow
in litigation.
Existing
ethical rules are all-but silent on the topic of expert witnesses.
They address experts only in their broad mandates that lawyers not
tamper with the truthfulness of witnesses or pay fees to non-expert
witnesses.
To some
extent, courts fill in this gap. Through their interpretations of
ethical, procedural and evidentiary rules, judicial opinions provide
much-needed guidance to lawyers and experts alike.
Trial lawyers
also help fill this gap through a trial-and-error process of ethics
by consensus. Through legal-education seminars, written articles
and word-of-mouth, they give shape to general understandings of what
is and is not acceptable in the use of expert witnesses.
Taken together,
these common-law and practice-generated mileposts can provide useful
guidance. But they are at best a patchwork, varying widely from jurisdiction
to jurisdiction. Even within a single jurisdiction, these informal
standards may be inconsistently applied and frequently misunderstood.
Lawyers
are not alone in this. Experts, too, lack formal guidance on the
ethical parameters of their work. While some professional associations
maintain informal or aspirational codes of conduct, no standardized
codes provide broadly accepted norms.
We have
spoken to many lawyers and experts who believe more guidance is needed
in this pervasive area of practice. To get the conversation started,
we propose the following code for lawyers. Next month, we will follow-up
with a proposed set of standards for experts.
Let us know
what you think by adding your comments below.
A. A lawyer shall do nothing
to interfere with an expert witness's independence and objectivity.
A lawyer shall not attempt to influence the content of an expert
witness's testimony.
B. A lawyer shall not
seek to pressure an expert witness, directly or indirectly, to
change an opinion, even when the opinion is detrimental to the
lawyer's case.
C. A lawyer shall not induce
an expert witness to offer opinions and testimony beyond the scope
of the expert's expertise.
D. A lawyer shall not knowingly
permit an expert witness to present testimony that is false or
misleading.
E. A lawyer shall not,
directly or through a third party, seek to discourage an opposing
party's expert witness from testifying or attempt to influence
the testimony of an opposing party's expert.
F. A lawyer shall not
manipulate an expert's opinion by withholding relevant information.
G. A lawyer may ethically ask
an expert witness to disregard certain evidence or to assume the
existence of certain evidence for the purpose of framing a hypothetical
scenario on which to obtain the expert's opinion.
H. A lawyer may ethically assist
an expert witness to prepare for trial or deposition, provided
the lawyer does not seek to influence the substance of the expert's
testimony or interfere with the expert's ability to testify truthfully
and accurately.
I. In preparing
the expert, the lawyer may tutor the expert on the issues of fact
and law at issue in the case. The lawyer may inform the expert
of the questions to be asked during direct examination and of the
questions likely to be asked on cross examination. The lawyer may
counsel the expert on demeanor, language and form of answers.
A. In communicating with expert
witnesses, the lawyer shall at all times ensure that the preservation
of client confidences remains paramount.
B. A lawyer shall
fully inform an expert witness on issues pertaining to client confidentiality
and to confidentiality as it applies to lawyer/expert communications.
A lawyer should ensure that the expert witness understands that,
in general, all of their communications may be subject to disclosure,
either through discovery or testimony.
A. A lawyer may pay an expert
witness an hourly fee and may pay a flat fee provided it reasonably
reflects the value of the expert's services and expertise.
B. A lawyer shall not pay or offer to pay an expert
witness a fee that is in any manner contingent on the content of
the testimony or the outcome of the case.
A. A lawyer shall not contact
an opposing party's expert witness outside the process of formal
discovery or otherwise engage in ex parte communications with an
opposing party's expert witness.
B. When a lawyer has
any reason to believe that an expert has been retained in any fashion
by another party to the lawsuit, the lawyer should have no further
ex parte contacts with the expert.
A. A lawyer should withdraw
from a case if the opposing side's expert witness is a former client,
unless the expert consents in writing to the lawyer's continuing
involvement in the case and acknowledges the potential for disclosure
of confidential information obtained through the prior representation.
B. A lawyer should refrain
from retaining an expert who has opposed the lawyer or his firm in
another case insofar as it may force the lawyer to alter his position
on the expert's credibility.
C. A lawyer who retains an
expert witness should request that the expert refrain from accepting
potentially adverse engagements for the duration of the retention.
D. A lawyer shall not serve
as advocate in a case in which the lawyer or a member of the lawyer's
firm may be called as an expert witness.
A. A lawyer who retains an
expert witness shall ensure that the expert fully understands the
standards applicable in the jurisdiction to the use and admissibility
of an expert's opinion.
B. A lawyer who retains
an expert witness shall prepare and require the expert to sign a
retention letter fully setting forth the scope of the retention and
the expert's obligations with regard to truthfulness, independence
and confidentiality. The retention letter shall also define the parameters
of the relationship, including its scope and limitations and the
expert's responsibilities.
C. A lawyer shall not use expert
testimony as subterfuge to introduce evidence that the court has
already excluded or ruled inadmissible. A lawyer is permitted to
ask the expert to base an opinion on inadmissible evidence if it
is of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject.
D. A lawyer shall not identify
someone as an expert witness before the expert is retained or after
the expert has resigned or is terminated.
E. A lawyer shall not
retain an expert witness solely to exclude the expert from being
retained by an opponent.
F. A lawyer shall not
seek to induce a retained expert to switch sides in a case or to
alter his opinion or analysis.
G. A lawyer shall not draft
or dictate the contents of an expert's written report. A lawyer may
properly guide an expert on the format of the report and the issues
to address.
H. A lawyer shall not use complex
scientific and technical expert testimony to complicate or obscure
the issues in a case.
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