Expert Witness Ethics and Neutrality
By Noah Bolmer
While attorneys maintain a duty to the clients they represent, expert witnesses must remain impartial throughout the process. Here are some of the ethical considerations experts frequently contend with, and advice on remaining candid and neutral.
Evaluate Engagements Honestly
As an expert witness, you will be contacted on a variety of matters, some of which are less squarely in your domain. It is crucial to first evaluate whether you are an appropriate fit. Dr. Laura Miele recalls a potential engagement that she could not ethically accept:
[T]his one was pushing my wheelhouse, so I turned it down [. . .] I am already a busy expert, and even if I was desperate and needed my last dollar, I would not take it. I am ethical, and at the end of the day, I am the one who must support my opinions and create a relationship with the client. I do not want to take on a client and not do my due diligence, then get on the stand and be asked questions that I cannot answer to a degree of professional certainty. I would not do it. I vet them that way: “Can I handle it? Have I done it? What is my education and training going to be able to bring to the table?” If it is not enough, as in this case, I will not do it.
It may be tempting to accept an engagement that is not completely within your expertise, but expert Jean Acevedo advises caution, “It is important to know where you are not an expert. You do not want to go down a path that could be the death knell to your career.” She continues, “Through the years, I have learned that when I have a case it is important to first, be upfront about whether you think there is a case.”
Professor Rand Decker prefers expert witnesses whose opinions are in line with their clients’ interest. He states, “You have confidence or faith in their arguments behind their litigation, and [attorneys] don’t want somebody there trying to argue it if they don’t believe it [. . .] [The] engagement is to see if we’re all swinging a bat for the same client in the same way.” In contrast, expert Dean Barron points out, “[T]he attorney doesn’t necessarily have to incorporate all of my opinions”.
Candor with Your Attorney
A dedication to ethics starts with your own team. Dr. Jill Cramer takes a direct approach, but offers alternatives, “I do not stretch my opinion, [. . .] I will tell the lawyers straight up, ‘I cannot help you in that direction, but here is how I could help you.’ Or ‘This is how you could utilize my testimony.’ I tell lawyers [that] all the time because I think it is important to have a reputation for being honest and telling the truth instead of being swayed.
Professor Marom Bikson agrees, recalling, “I was the most useful to [my lawyers] when I was speaking from a position of strength and a position which I was comfortable with [. . .] They do not want me to say something that I cannot adamantly support [. . .] They want to hear the truth so that they can build on it; they do not want to be blindsided because their expert told them what they wanted to hear.”
Often, a case will go to a favorable settlement rather than trial based on an expert’s work. Expert John Catlett notes:
[S]ometimes it’s better to tell them, “You step away from this one.” [. . .]And what I have found from the attorneys that I work with [is] they value that; they want me to tell them that because they don’t want to go down a path and think that there’s something there that’s not there, and they don’t want to promise a client that they’ve got something that’s not there. [. . .]And a lot of times they will sit there and say, “Thank you, send me a bill.” and [I’ll say], “No. I’m just telling you right up front; I don’t think you’ve got anything.” [In] just about every instance they’ve let me know, “Yeah, we’ve dropped this one. We’re not going to go after it.” If they were to have continued on and get somebody else– that would make me feel like I had not done value to them with the services I offer.
Truthfulness and Neutrality in Documents
It is unethical to rely on any materials that haven’t been thoroughly reviewed by the expert witness. Once a document has been signed and submitted, the court assumes that the expert either wrote, or agrees with everything contained therein.
Expert Craig Schlumbohm states, “You must be comfortable with your analysis and with people attacking that analysis. It is knowing and being confident in the work that you have done [. . .] I know many experts will rely on staff [. . .] and are handed documents that they have not always reviewed. That shows and it does not come off well when you do not know what is on a piece of paper and it has your letterhead on the bottom.”
While documentation must be truthful and neutral, it should still be persuasive, according to expert Kirk Watkins, noting, “Over time, I have adjusted the structure and form of my writing that I refer to as persuasive neutrality. I try to use as few adjectives as possible and describe facts in a way that is favorable to my client as opposed to favorable to the other side, but not overblown. I am trying to describe a fact, not to energize with an adjective.”
Truthfulness and Neutrality in Court
Attorneys prepare for a wide swath of eventualities in court, leaving expert witnesses free to concern themselves only with answering truthfully. Expert Robert Sherwood illustrates this:
Sometimes an expert gets asked a question on the witness stand under oath. The witness knows what he will reply. He must be truthful, but he is damaging to his client. What should he do? He can trust that his lawyer during cross-examination will clear that up. Experts I have talked to say, “What do I do? I am going to have to say something negative.” I said, “Do not worry about it. What you need to do is answer truthfully. A lawyer will come back to you and ask you to explain it but do not explain it yourself [. . .] The lawyer’s job is the proponent of the client; the expert is not. If you will, I am their proponent of truthfulness, so be truthful and let your lawyer advocate for your client.
Avoid coloring reports or testimony, as nothing will end a career faster than lying in depositions or on the stand. Dr. Chuck Easttom admonishes, “As an expert, your career will recover from being wrong, even very wrong. You will recover from losing cases. If you do not tell the truth, even if it does not rise to a charge of perjury, that [can] end your career.”
Dr. Elliot Fishman advises an ethical commitment early on, stating, “Ultimately, you must live with yourself. Clients will come and go, but if you are compromising your ethics early in your career, that is not a good path to go down. You will always have that voice in the back of your mind. No, I do not want that voice in my head. Young people starting out should keep that in mind.”
Remain forthright and neutral throughout your engagement for a long successful expert witnessing career. From the initial call onward, communicate with your attorney with candor, and remember, your reputation is as important as your expertise.
Interested in being considered for expert witness work? Consider signing up with Round Table Group. For 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or apply to join our network!