More articles by Phillip J. Kolczynski, Esq. Ethical Challenges For Experts In Civil Litigation

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Introduction

This is a teaching and lecturing outline which I have used in various forensic expert courses and programs. It is intended as an issue-raising guide for consultants and expert witnesses who will work for attorneys. It should only be used in compliance with the rules of evidence and procedure that apply in the particular jurisdiction involved. It could be useful as a checklist covering issues for discussion between the expert and the attorney.

Make Sure You Get Paid

1. Confirm in writing:
   1. Normally, the lawyer will pay the expert directly unless it is mutually agreed that the Client will pay the expert directly.
   2. Whether bills will be paid monthly or quarterly.
   3. Whether customary or unique fee arrangements will apply for:
      1. Research, testing and analysis.
      2. Consulting.
      3. Testifying in deposition and Trial.
      4. Travel and other costs.
2. Obtain a retainer, if necessary. Retainers provide consideration for the Attorney-Consultant Contract. Retainers can be abused. (Example of Abuse: "Retention For Prevention" - Attorney hires noted expert just to keep other side form hiring him/her, but does give the expert much work. (Hard to prevent, but "once burned, forever warned.")
3. The consultant/expert should confirm verbally whether:
   1. Expense estimates will be needed?
   2. The expert has authority to use other consultants or subcontractors?
   3. The expert has the freedom to conduct, perform or create any testing, interviews or demonstrative aids, etc.?
   4. There are case discovery deadlines and/or your consultant work-product deadlines?
4. Bill regularly and submit detailed bills without disclosing work product in your description of services:
   1. Tactfully ascertain attorney's client billing cycle.
   2. Have attorney recommend methods for billing telephone calls and conferences.
   3. Use task log if directed by the attorney.
   4. Use travel logs when directed by attorneys.

Ethics For Experts In Litigation

1. Before accepting employment, always ensure that no conflict of interest exists:
   1. Obtain instructions from attorney as to confidentiality and other client concerns.
   2. Where potential conflicts exist, seek permission in writing to consult from prior "confidants."
   3. Penalties for consulting or acting as an expert in a conflict of interest include:
      1. Expert disqualified from testifying.
      2. Attorney and expert completely disqualified from the case.
2. Sources of expert ethics:
   1. The oath.
   2. Ethics Guidelines in the expert's field.
   3. The attorney's Canon of Ethics and State Professionals' Codes (Attorney Ethics are indirectly applicable to the expert, who works as an agent of the attorney. The expert may not be punished for infractions, but the attorney may!)

Become An Indispensable Consultant

1. As soon as you are retained, advise the attorney about photographs, testing or measurements, which must be taken as soon as possible to preserve evidence.
2. Identify key documents which must be obtained.
3. Ascertain the attorney's objectives. In a personal injury case, are you testifying on breach of the standard of care, or causation, or both?
4. Outline your normal analytical procedures and obtain approval to implement them.
5. If you are to be an investigator and consultant, outline your investigative plan and obtain approval.
6. Raise issues and offer advice.
   1. Clarify that there is no charge for advice if outside the strict working guidelines imposed by the attorney.
   2. Make sure you point out both the favorable and unfavorable facts.
   3. Identify investigative leads and clarify which are "long shots".
   4. Point out the scientific testing methods available to shed light on the problem and costs associated.
   5. Spot false or weak assumptions and inadequate work by other "experts".
   6. Determine whether the attorney needs your expertise on a technical subject or the industry involved, or both.
   7. Before your contact fact witnesses or persons with technical information, coordinate with the attorney.
7. Identify other research resources for the attorney.
8. Return your attorney's calls promptly.
9. Find ways to save money for the client.
10. Supply journal articles and other literature which decipher complex subjects for the attorney.
11. Make sure you understand your assignment:
    1. Are you to be an investigative/researcher and/or a consultant and an expert?
    2. Familiarize yourself with all relevant aspects of the case so that you understand where your opinions fit in.
    3. Do you know the subject areas in which your expertise will or will not be used if there are to be multiple experts?
    4. Have you pinpointed sensitive areas?
    5. Do you understand your confidentiality responsibilities?
    6. What materials will the attorney provide for review?
    7. What documents are you expected to locate?
12. Remember a little knowledge can be dangerous - Do not engender overconfidence on the part of a technically naive attorney. Identify opinions upon which reasonable experts may differ, so that the attorney does not place undue confidence in your opinions.

Plan Your Transition From A Confidential Consultant To A Testifying Expert

1. Once officially "Disclosed" or "Designated" as a Testifying Expert, all of your analysis, notes, conversations, reports, correspondence, opinions, research, photos, etc., usually become discoverable; therefore, establish disciplined note taking practices to avoid creating misleading materials. (See "C." below).
2. Many state court trial attorneys prefer no "written" reports from experts. They wish to avoid pinning the expert down until all the evidence is collected.
   1. Federal Courts now require written reports.
   2. Examples of problems that can develop with written reports: Premature conclusions, inconsistencies, scope of analysis incongruities.
   3. Situations for which reports are particularly helpful:
      1. Reports for settlement.
      2. Reports for mediation, arbitration, mini-trial.
      3. Declaration reports for summary judgment motions.
      4. Briefing material for insurance companies that are not concerned with discoverability.
      5. Documentation for the attorney or client who wants a report to justify payment of fees.
3. Establish your own internal document retention policy for your notes.
   1. Avoid jotting editorial notes on documents, particularly depositions.
   2. Consider whether you need to keep "laundry lists" or "to do" lists.
   3. Be careful what you write in your notes: Imagine the cross-examiner's delight at finding the penned-in words "problem area", "smoking gun", or "point out problem to attorney" next to some fact unfavorable to the client.
   4. Remember: the more unnecessary notes, the longer the deposition, the greater the scope of the "inquisition."
   5. Consider also that it may be essential to preserve notes of calculations, formulas, measurements, etc. to support your opinions.
4. Coordinate carefully with the attorney regarding the "timing" of the creation of demonstrative evidence. (Before deposition? Before trial?)
5. Determine who will serve as the opposing expert and forewarn your attorney about their strengths and limitations.
6. Expect that an attorney may "bench" you if your opinions are not helpful to his client but may still retain you for advice and testing.
7. Prevent expert designation abuse whereby some attorneys officially designate their expert to the Court and opponents without the expert's permission. Don't allow attorneys to designate you as an until you've studied the case and formed opinions.
8. Beware of attorneys that use a subpoena to depose a non-retained, but technically knowledgeable persons, and "milk" them for opinions and expertise. You may need to petition the Court for a Protective Order.

Win The Battle Of The Experts

1. Assume that you are truly an expert, convey a creditable impression and know the case thoroughly. How can you be more persuasive than a comparably equipped expert on the other side?
   1. Support your opinion with:
      1. Specially designed demonstrative aids that highlight your opinions but which cannot be used to the benefit of the opposition. (Example: If you are going to have the accused try on a glove in front of the jury in "the trial of the century," research to ensure that it's going to fit ahead of time!)
      2. Anticipated opportunities for "impromptu" explanations on the blackboard.
      3. Locate and use of:
         1. Corroborative government data; and
         2. Supportive government statutes, regulations and directives.
      4. Mastery of facts in investigative reports.
      5. Adroit references to testimony in depositions of witnesses, particularly the opposing party and their experts.
      6. The ability to explain that you have, e.g.:
         1. Flown the accident airplane or test driven the car
         2. Visited the "site" or
         3. Analyzed the failed product or
         4. Handled the same problem or
         5. Examined the patient or
         6. Personally tested the sample.
      7. Corroboration of your opinions with personal investigation and interviews.
      8. The assurance that you have personally checked the work of subordinates or sub-consultants (The Pathologist Fung's mistake in the O.J. Simpson trial).
   2. Take advantage of:
      1. The use of photographs, video, audio, computer analysis, etc., to positively reinforce the basis for your opinion.
      2. Easily understandable calculations.
      3. Authoritative treatises, journal articles, etc.
      4. Selective use of governmental regulatory pamphlets, handbooks, guides, etc., to add imprimatur to your opinions.
      5. Differential diagnosis (my opinion is correct because competing opinions cannot be correct for these reasons...)
      6. Consistent/inconsistent analysis (the uncontroverted facts support my opinion and are inconsistent with that of the opposition).
      7. Inductive ("building block") reasoning juxtaposed with deductive analysis.
      8. The use of well thought out metaphors, analogies, examples, and quotations in response to anticipated cross-examination.
      9. Confident, forthright and down-to-earth demeanor.
      10. Objective comment on the omissions and mistakes of the other side's witnesses experts, made during the trial.

Avoid Mistakes Other Experts Have Made

1. Offering opinions outside your area of expertise.
2. Failing to master the facts of the particular case in which you are employed.
3. Relying on data or documents not pertinent to the date on which the event occurred which has given rise to the lawsuit. (Example: current standards applied to an occurrence 3 years ago.)
4. Ignoring the opposing lawyers' and experts' view of the case.
5. Misunderstanding how your opinion fits into your client's or attorney's theory of the case.
6. Becoming an advocate instead of an unbiased expert whose opinion happens to favor your client.
7. Billing for work not authorized by the attorney and client or analysis which satisfies intellectual curiosity but is not necessary for the case.
8. Mishandling custody of tangible evidence.
9. Allowing your "ego" to intrude in your deposition or trial testimony.
10. Revealing arrogance when discussing how much you are being paid to testify.
11. Damaging your credibility by quibbling over peripheral issues when on the "stand".
12. Losing your temper on the stand (unless its intentional and restrained).
13. Answering hypothetical questions without forcing the cross-examiner to supply all the variables or assumptions.
14. Falling victim to the short-cut of reviewing attorney's deposition summaries instead of personally reading the deposition.
15. Answering questions in deposition or trial on cross-examination or direct, if you do not understand the question.
16. Losing sight of the fact that juries pay a lot of attention to choice of words.
17. Refusing to acknowledge the implication of possible bias resulting from prior employment (i.e., pensions, friendships with career co-workers, post-employment contracts, clients derived from prior employment)
18. Neglecting to tell your attorney about related prior testimony, affidavits, speeches or publications, job assignments or lawsuits even if remotely relevant.
19. Failing to reveal "resume blemishes" to your attorney (failures in school, convictions, drug or alcohol problems, job "lay offs", conflicts of interest, prior accidents, license suspensions, etc.).
20. Forgetting to provide your attorney with incisive cross-examination questions to be used on the opposing expert.

Rules, Tips and Caveats

1. Learn the role of the technical fact witness/the technical expert witness in litigation from a litigation attorney's point of view, so that you can be an effective consultant and witness.
2. Understand attorney-client privilege/attorney work-product doctrines and when the expert's work may be covered by such privileges. Also, learn how the privileges are waived under the rules of the state where you work.
3. Generally, expert opinions are admissible if they will aid the trier of fact and:
   1. The type of opinion is one which is "generally accepted in the scientific community." Frye test (some states).
   2. Under the Daubert test (federal) scientific expert opinions are admissible if they meet the following tests:
      1. Opinions reflect expertise which can aid the trier of fact. (Federal Rules of Evidence 702)
      2. The methodology for the opinions can be tested
      3. The knowledge is subject to peer review and publication or analysis?
      4. The rate of error in the scientific method utilized is acceptable?
      5. The scientific method is generally accepted in a particular industry?
4. May experts rely on hearsay?
   1. Definition - Hearsay is an "Out of Court statement made for the truth of the matter asserted"
   2. When expert's include hearsay as a partial foundation for their opinions, the hearsay may be admissible, under exceptions to the hearsay rule, if it can be shown to be trustworthy, e.g., Federal Rules of Evidence 803(24) (Example: Investigating Officers Accident Report-Federal Rules of Evidence 803(8))
   3. Experts may rely upon hearsay if it is the kind "reasonably relied upon by experts" in your industry. Federal Rules of Evidence 703.
5. Experts are more important than ever in contemporary civil litigation. Most technically complicated large cases are not settled until and after the experts have testified.
6. Recognize that the expert is usually the author of demonstrative evidence; therefore it behooves experts to become very knowledgeable about demonstrative evidence creation methods and the rules of evidence that apply.
7. Experts and Juries. Experts are well advised to assume the demeanor of a friendly teacher when in front of a jury. Speak at the level of an intelligent 16 year old. Don't under estimate the intelligence of jurors, try to explain the issues on the basis that the jurors have no background in your field.
8. Do expert witnesses enjoy immunity against lawsuits?
   1. For deposition and trial testimony -- almost always.
   2. For pretrial litigation support -- occasionally not.

Conclusion

The attorney-expert team is critical to the successful litigation of complex cases. But remember, there is always potential tension in this relationship. Experts must be objective. Attorneys must be subjective - they must advocate their client's case. While it is a lawyer's job to zealously interpret (not create) evidence in favor of a client, the expert's job is to zealously search for facts and the truth.

By: Phillip J. Kolczynski, Esq. E Mail: phil@aviationlawcorp.com Copyrighted ©1997 by Phillip Kolczynski. Esq. All rights reserved.