An Ethical Framework: Guiding Principles for Expert Witnesses
By Noah Bolmer
The ethical ramifications of expert testimony must not be taken lightly, as outcomes are often dependent upon it. Expert witnesses must remain absolutely neutral for the duration of an engagement, without even the appearance of bias. While the ethical demands may seem straightforward in theory, we all have blind spots. It is important to be aware of any positions which could impact the client, that you have taken publicly—whether casually in social media, in expert reports, or in published works.
Qualifications
Explicit guidelines for expert qualifications and methodology are embodied in Federal Rule of Evidence 702 (for most jurisdictions), but in general, experts should never accept an engagement that they are not fully qualified for. While it may be tempting to consider engagements at the edges of your expertise, staying in your proverbial lane will ultimately result in better, and more frequent engagements. Expert Kevin Quinley admonishes, “Stay in your swim lane, and by swim lane I mean your subject matter expertise because it gets dangerous and does the client no favors, does the law firm no favors, and does you no favors as the credibility for your future engagement if you venture outside an area that is external to your core expertise.”
Moreover, even when your expertise squarely meets the needs of your attorney, there will be times when a question during a deposition or cross examination stumps you. When this happens, it is imperative to tell the truth. Expert Terry Stroud recommends, “Do not be afraid to say, ‘I don’t know.’ even if it’s in a deposition, or at trial and a lawyer asks you something that is totally out of the blue that you did not have in your report because many of these questions are intentional. The lawyer wants to see if he can get you frustrated, so never be afraid to say, ‘Sir, I do not know.’
Qualifications do not exist in a vacuum, and there is an expectation that your opinions are based on the most current standards for your field. If the basis for your opinion is out of date, it may no longer be considered a qualified expert opinion. Expert Erik Bernstein notes, “continue learning. It is important to be able to say, ‘Here is how I stay up to date on my field. I read X, Y and Z publications.’ That is something I was asked during a recent deposition: ‘How do you make sure you are up to date?’ [and] ‘How can you say that you are using standards other PR professionals use?’ It is important to be able to explain how you keep educating yourself.”
Posting on Social Media
What may seem an off-handed social media comment can be decontextualized or otherwise used to indicate a bias. Dr. Kantha Shelke recommends caution, “Be thorough and very careful about what is stated. I apply that across my life so you will not see me on any of the social media platforms or even jokingly sitting with friends saying anything that could come back to bite me.”
Even without bias, opinions may change over time as new information and better methodologies develop. Expert Stroud recommends pointing this out when asked about discrepancies. He states, “I keep my social posts to a minimum because some lawyers have said, ‘Terry, do not put anything on social media that you are not ready to defend.’ I do have some blogs that I put out on LinkedIn or my website, but I am careful about that, because as you get older or as things progress what your opinion is today may not be what it was ten years ago.”
Setting social media settings to private is one method to help eliminate the appearance of bias, while still allowing you to communicate with your friends and family. Dr. Laura Miele recommends:
New experts, be careful what you post on Facebook, even your political views. I am careful about what I post; I made my Facebook private. Not that I have anything to hide—I am always posting my kids conducting their sports and funny memes—but you want to be careful because you are a [public] presence now. As an expert, they will find anything they can to use against you during a trial right on a screen. [. . .] New experts must be prepared for the way they conduct themselves in public—what you say and do can be used against you.
Conflicts of Interest and Personal Bias
It is important to be aware of any potential conflicts that may affect your ability to approach a case neutrally, whether personal conflicts, or conflicts of interest. A conflict of interest (sometimes referred to as a COI) can arise when the expert has a pre-existing relationship with another party to the action. This typically takes one of three forms:
- Prior involvement with a party: If an expert has previously consulted for, been employed by, or even testified against a party to the action, confidentiality issues may become an issue. This is not an automatic disqualifier, but it should be taken into account before accepting an engagement.
- Financial ties: While it is never permissible to tie expert witness payment to the outcome of a case, there are times where an expert witness may nevertheless have a financial stake in the case, or in the financial position of a litigant. If this incentive exists, however removed, experts should decline the engagement.
- Personal connections: If an expert has a close tie to one of the participants to an action, it opens a potential avenue for impeachment. While this not always disqualifying, particularly in more niche fields where litigants are likely to know each other, it is important to not let relationships affect neutrality.
Appearances matter. Even when an expert is fully capable of making a neutral informed opinion, if there is even a potential conflict of interest, ethics may require turning down engagements. Dr. Douglas Kalman leaves nothing to chance:
Two companies have been suing each other for the last couple of years—it happens (I guess) in every industry. This one is the beverage industry. Both sides have reached out to us multiple times: “Can you be an expert for us?” Each time, we say “No,” and they ask, “Why?” I said, “Well, there is a perception of a potential conflict of interest because as an individual I was at the wedding of somebody that works for one of these parties. Therefore, there is a perception of conflict.” I would rather not get involved, especially when both sides are asking us.
Similarly, a personal conflict may arise due to your own opinion of the case. Professor Robert Handfield knows when to say “no”:
I am first looking for whether I feel good about this position. Do I feel good about taking a stance and putting my stake in the ground defending this client on this issue? It is not a good fit if I do not feel good about it. You must tell the truth and stand by your principles as an expert witness. You have to know when to say “no”. You must know when to stand back and say, “I have a conflict of interest and do not agree.” Standing by your principles is essential.
Advocacy
The one thing to remember is that your job is to find the truth, not to advocate for the client you represent.
Expert witnesses have a duty to avoid advocacy in court. Your role is an impartial source of knowledge, aiding the judge or jury in grasping complex issues. This means presenting objective analyses and well-reasoned opinions based on expertise, not arguing for a favorable outcome. Advocacy undermines your credibility and opens you to impeachment. As expert Robert Sherwood states, “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.”
Professor Gil Fried cautions against working for only one side, which can make an expert seem like an easily impeached advocate, recalling “I’ve worked with attorneys and said, ‘Yeah, that [expert has a] great perspective, but they only do cases on one side. Right? They’re an advocate because they don’t want to lose the possibility of consulting work, and so as such, this is how you destroy them.’ And each time it has worked.”
Attorney Pressure
Unfortunately, attorneys will occasionally pressure expert witnesses, directly or indirectly, to opine in a non-neutral manner. While it is acceptable to choose an expert whose opinion aligns with the needs of the client, it is never permissible for an attorney to influence that opinion.
Sometimes, this may be something as simple as word choice. Expert Bill Gervasi explains, “[T]he word ‘terminal’; I was warned early in the case that [it] was a contentious term. When I did my homework on the definition, I had to stick to my guns and at that point my position was inflexible. Not only did my lawyers keep questioning that, but the other side as well.”
Capitulating to pressure can be a career-ending mistake. Dr. Chuck Easttom warns “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 would end your career. Even if it does not rise to that, if you get a reputation for someone who plays a little loose with the truth, you are done.”
Being neutral does not mean you must avoid strategizing with your attorney. Dr. Jill Cramer assists her clients while remaining completely ethical, which enhances her reputation as an expert witness:
I do not stretch my opinion—if my opinion is “No, that did not happen, this happened” or, “This is how the medicine works.” 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 all the time because I think it is important to have a reputation for being honest and telling the truth, instead of being swayed in whatever direction that someone wants to move.
She continues, recounting a situation where she was cross-examined by a previous engaging attorney:
I am being [cross-examined] by somebody who has utilized me as their witness in the past. When we got to the end, he commented [on] something that I was willing to say in this case. The [current] lawyer I was working with said, “You should have heard all the stuff she said no to.” Both lawyers knew me and knew that I was going to do my best, to be honest about what I believed and not be nudged. I think that makes you a stronger witness [when] everybody at the table knows what you are going to say, and you are not going to be wishy-washy on the stand.
As expert witnesses, you are ethically bound to provide neutral, competent, and unbiased testimony. Strive to stay within your area of expertise, disclose any potential conflicts of interest, and resist the urge to advocate for a particular side. Ethical experts develop a positive reputation among attorneys, guaranteeing more frequent engagements and re-hires.
If you are interested in being considered for expert witness opportunities, consider signing up with Round Table Group. For nearly 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 sign up now!