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Ethics And The Trial Consultant And Expert Witness

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Ethics And The Trial Consultant And Expert Witness

  1. 1. Ethics and the Trial Consultant and Expert Witness <ul><li>Two different roles. </li></ul><ul><li>Trial Consultant advises attorney, name and reports are not releasable under discovery rules. </li></ul><ul><li>Expert Witness, prepares to testify, name must be provided, CV must be provided and reports are discoverable. </li></ul>
  2. 2. <ul><li>Trial Consultant </li></ul><ul><li>When an attorney initially hires an expert for a litigation matter, the expert's proper title during the discovery phase is &quot;consultant&quot;. The attorney may ask the consultant to investigate, research, consult, advise, experiment, test, study, read and perform many other functions. Normally, such activities are confidential and, opposing parties cannot obtain the expert's name or work product without a special court order. </li></ul>
  3. 3. <ul><li>Trial Consultant </li></ul><ul><li>To the extent the consultant uncovers information unfavorable to the client, the other side cannot obtain such information absent special circumstances. </li></ul><ul><li>Once an attorney is satisfied that a consultant has opinions favorable to the client, the attorney may notify the other side that he will use the expert to testify. This is called &quot;identification&quot; in federal practice and may have other names in state practice varying from State to State. </li></ul>
  4. 4. <ul><li>Trial Consultant </li></ul><ul><li>A consultant must fully disclose to the attorney all information which may affect the client's case, including matters which may allow the other side to impeach the expert's credibility. This should be done while a confidential consultant relationship exists so that the attorney can decide whether such information may seriously harm a client's case and choose not to designate that consultant to testify. </li></ul>
  5. 5. <ul><li>Trial Consultant - Attorney </li></ul><ul><li>ATTORNEY SHOPPING FOR A FAVORABLE OPINION </li></ul><ul><li>A consulting expert's responsibilities in such circumstances are to make clear to the attorney that his opinion will be based on the facts. The expert should explain that he will make a thorough analysis of the facts and provide an honest preliminary opinion to the attorney at the earliest available opportunity so that the attorney can decide whether to use that expert's services. </li></ul>
  6. 6. <ul><li>Trial Consultant -Attorney </li></ul><ul><li>CONTINGENCY FEE FOR EXPERT TESTIMONY </li></ul><ul><li>There are certain limited exceptions, primarily in the field of medical malpractice, where consultants who do not testify may earn a contingent fee for locating appropriate testifying experts or investigative leads. However, expert activity leading to testimony cannot be compensated on a contingent basis. Only one case that is contra to this proposition, but reversed on appeal (EDNY 1976, USCA 2d Circuit 1977) </li></ul>
  7. 7. <ul><li>Expert Witness-Attorney </li></ul><ul><li>The training, perspective, and motives of the technician-investigator and of the lawyer differ in many respects. In this set of exercises are designed to explore those differences as manifested in the situation of a technician-investigator serving as an expert witness in a case that may be tried. </li></ul><ul><li>This presentation is not jurisdiction specific. </li></ul>
  8. 8. <ul><li>Expert Witness </li></ul><ul><li>Some of the issues are summarized: </li></ul><ul><li>What is an expert witness? </li></ul><ul><li>What are some of the differences between the lawyer’s motives and the technician-investigator’s duty that may affect how the technician-investigator acts, or is expected to act, as an expert witness? </li></ul><ul><li>Is the function of the expert witness in conflict with the code of ethics professed by the technician-investigator? </li></ul>
  9. 9. <ul><li>Expert Witness </li></ul><ul><li>If so, in what specific instances? Is it possible to mitigate, even eliminate, these conflicts? </li></ul><ul><li>How? </li></ul><ul><li>We can explore these and related questions by employing a &quot;Think – Pair – Share&quot; methodology. We then follow up with a formal or informal debate, or consensus-building discussion. </li></ul>
  10. 10. <ul><li>Expert Witness </li></ul><ul><li>Two among several relevant Theories of Ethics </li></ul><ul><li>1.) The Categorical Imperative of Immanuel Kant (1724 - 1804): &quot;Act on a maxim which you can will to be a universal law.&quot; This is a Respect for Persons (RP) morality, and a deontological, or binding duty, theory. </li></ul>
  11. 11. <ul><li>Expert Witness </li></ul><ul><li>In Kant’s philosophy The Categorical Imperative means that it is both a necessary and absolute moral law, and that it is the ultimate rational basis of all moral conduct. Further, it is binding on all rational beings and is not based on conditional premises, wishes, or consequences. </li></ul><ul><li>A maxim may be thought of as a &quot;formula&quot; of sorts, a prescribed behavior. For example, if A is a subjective condition, and if B is an action, then a maxim could take the form: If A occurs, I will do B. </li></ul>
  12. 12. <ul><li>Expert Witness </li></ul><ul><li>Law here is not used in the legal sense, rather it means a principle of action independent of fear of sanction. Thus one applies the test of asking oneself: &quot;Could I will that the action I am about to take, B, should become the duty of all rational beings in response to A?&quot; </li></ul>
  13. 13. <ul><li>Expert Witness </li></ul><ul><li>2.) Utilitarianism, associated with Jeremy Bentham (1748 - 1832) and John Stuart Mill (1806 -1873) stated as: &quot;Act so as to produce the greatest happiness for the greatest number of people.&quot; </li></ul><ul><li>Another idea that may be relevant in to situations in ethics is The Principle of Informed Consent. This means that the potential user(s) of our products and services must be made aware of hazards and other implications of using them. </li></ul>
  14. 14. <ul><li>Expert Witness </li></ul><ul><li>The rules governing expert testimony are the domain of the lawyer and the trial judge. It is unnecessary for the expert witness to be familiar with the intricacies of expert testimony and hearsay evidence. It is enough to say that the admissibility of expert evidence is predicated on the existence of knowledge and experience that is beyond that of the ordinary citizen and is applicable to the matter before the court. It has the effect of proving facts. </li></ul>
  15. 15. <ul><li>Expert Witness </li></ul><ul><li>Pre-Trial Preparation </li></ul><ul><li>Any person may be summoned to testify to describe a circumstance seen or personally heard. This witness has no special status. A person may be summonsed as an expert witness; the witness has special status and may give opinion evidence based on expertise. The following practice points concern the latter. The witness may be examined about professional credentials and knowledge, the facts of the matter before the court and opinions the witness may have as to cause and effect. </li></ul>
  16. 16. <ul><li>Attorney-Expert Witness </li></ul><ul><li>Lawyers need to recognize the need for a consultant early on. They should obtain a qualified consultant on their team as soon as possible. </li></ul><ul><li>Part of the qualification must be current professional certification, experience, training and membership in the appropriate professional organizations. These all contribute to recognition and acceptance as an expert. </li></ul>
  17. 17. <ul><li>Attorney-Expert Witness </li></ul><ul><li>The lawyer should look for a consulting expert with a broad track record. A resume displaying a broad background involving education, experience teaching, supervision. </li></ul><ul><li>A consultant with a majority of career activities in one or two areas is not as credible as one with a broader background. Actual work experience in the field is more impressive and important than primary experience in academia. </li></ul>
  18. 18. <ul><li>Attorney-Client </li></ul><ul><li>Lawyers need to explain to their client the need for expert assistance. </li></ul><ul><li>The lawyer and his or her client will feel more confident about the case if they know that the qualifications of the team are to be enhanced by the addition of a consulting expert. The client will recognize the wisdom of the financial investment. </li></ul>
  19. 19. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #1 - Attend by court ordered summons or subpoena only. </li></ul><ul><li>The expert witness attends court at the request of a party or by court summons or subpoena. The expert witness should consider being formally ordered to attend rather than attending voluntarily. There are advantages to attending by court order. </li></ul>
  20. 20. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #2 - Take to court only what the subpoena commands. </li></ul><ul><li>Read the summons or subpoena to find out what you must be bring with you to court. If the order commands the witness to attend in person, that is all that is required. If it commands attendance plus the delivery of materials, take only what is specified. </li></ul>
  21. 21. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #3 - Clarify precisely what area of expertise is you will be expected to testify to. </li></ul><ul><li>Most requests to testify as an expert witness begin with a telephone call from counsel. Immediately begin the process of clarifying why counsel requires expert opinion and what expertise may be possible. Reach an understanding of the expertise required early. It will focus preparation if the request is written and reduce the risk of misunderstanding later. </li></ul>
  22. 22. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #4 - Clarify if a written report is required. </li></ul><ul><li>Written reports form the basis for pre-trial preparation, settlement negotiations and testimony during trial. They may lead to a decision not to call the expert witness, or a settlement and hence prevent a trial. Reports may be a few paragraphs or voluminous. If a written report is requested, incorporate only what is necessary. </li></ul>
  23. 23. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #5 - Review the file and relevant information. </li></ul><ul><li>Testifying may occur any time after initial communications and written reports are submitted. Before attending court or deposition, review the specific circumstances to refresh memory, focus attention on important facts and issues to enhance the credibility of your factual and opinion testimony. </li></ul>
  24. 24. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #6 - Ask for a convenient time to attend. </li></ul><ul><li>Trials requiring expert testimony may lengthy. Expert witnesses have other business. Counsel are responsible for planning and presenting their evidence, including testimony of witnesses. The witness may request a convenient time to testify. Counsel should estimate time required for the witness to testify. </li></ul>
  25. 25. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #7 - Clarify what pre-trial involvement is contemplated. </li></ul><ul><li>Find out what meetings with counsel or pre-trial proceedings such as depositions, are necessary, under what circumstances and who will make the arrangements. </li></ul>
  26. 26. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #8 - Clarify if other experts are being called to testify. </li></ul><ul><li>Expert witnesses do not always agree on the interpretation or effects of specific circumstances or facts. The witness should be prepared to respond to a challenge of his or her opinion through another expert witness’ opinion. </li></ul>
  27. 27. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #9 - Provide a curriculum vitae. </li></ul><ul><li>Opinion or expert testimony is permitted only if the court declares a witness to be an expert in a specified field. The statement of qualifications is made after the witness is sworn in and before testifying. Education, training, related experience and current knowledge are essential ingredients to be a credible expert witness. </li></ul>
  28. 28. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #10 - Answer questions in plain language. </li></ul><ul><li>The expert witness attends court to interpret and express opinions about facts. Plain language assists the jury in understanding interpretations and opinions. It will tell the court that the witness understands the subtleties of the situation without resorting to professional jargon. </li></ul>
  29. 29. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #11 - Answer only what is asked. </li></ul><ul><li>Be precise and do not offer gratuitous comments. Answer only what counsel or the court asks. If clarification or interpretation is needed, do so as necessary. It is better to acknowledge lack of expertise in a specific area than to risk misleading responses. Failure to acknowledge a possible alternative interpretation may result in loss of credibility. </li></ul>
  30. 30. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #12 – Accept the rules of evidence and rules of the court. Accept the rulings and orders of the court with good grace. </li></ul><ul><li>The main objections raised by counsel to expert testimony arise because of hearsay and a proper foundation for the opinions expressed. </li></ul><ul><li>It is the judge who permits the witness to leave the stand by excusing the witness. This means the witness is free to stay in the court or leave. The witness may however, be required to remain for further testimony or return as the court instructs. </li></ul>
  31. 31. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #13 Anytime a potential conflict exists, an expert's obligation is to disclose the nature of the conflict to the attorney so the attorney can determine whether the expert may continue to function on the client's behalf. </li></ul>
  32. 32. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #14 Share the ground rules with the lawyer. Is he or she asking for a report, or just a document review and an opinion? Perhaps the most important ground rule involves time lines and the schedule. When will the consultant be expected to be deposed and ready for final inputs? If a report is necessary, when will it be required? </li></ul>
  33. 33. <ul><li>Expert Witness </li></ul><ul><li>Practice Point #15. Lastly, make sure you have sufficient time so that you can do a professional job and not have to rush or make last-minute modifications. </li></ul>
  34. 34. <ul><li>Expert Witness </li></ul><ul><li>Another approach to Professional Conduct. </li></ul><ul><li>Rules of Professional Conduct for the American Board of Criminalistics </li></ul><ul><li>&quot;Experts in the field of forensic science (criminalistics) are constrained as follows: </li></ul><ul><li>1.Comply with the By-Laws and Regulations of their organization. </li></ul>
  35. 35. <ul><li>Expert Witness </li></ul><ul><li>2.Treat all information from any agency or client with the confidentiality required. </li></ul><ul><li>3.Treat any object or any item of evidentiary value with the care and control necessary to insure its integrity. </li></ul><ul><li>4.Ensure that all exhibits in a case receive appropriate technical analysis. </li></ul>
  36. 36. <ul><li>Expert Witness </li></ul><ul><li>5.Utilize standards and controls to conduct an objective examination and analysis. </li></ul><ul><li>6.Refrain from using techniques and methods which are known to be inaccurate or unreliable. </li></ul><ul><li>7.Make full and complete disclosure of the findings to the submitting agency. </li></ul>
  37. 37. <ul><li>Expert Witness </li></ul><ul><li>8.Prepare a report of findings and conclusions in all cases. </li></ul><ul><li>9.Make and keep work notes on all items, examinations, results and findings at the time that they are done. </li></ul><ul><li>10.Render opinions and conclusions strictly in accordance with the evidence in the case (hypothetical or real) and only to the extent justified by that evidence. </li></ul>
  38. 38. <ul><li>Expert Witness </li></ul><ul><li>11.Testify in a clear, straightforward manner and refuse to extend oneself beyond the field of expertise or competence for which one has been hired, including the phrasing of testimony so as not to be misinterpreted. </li></ul><ul><li>12.No exaggeration, embellishment or other any misrepresentation of qualifications. </li></ul>
  39. 39. <ul><li>Expert Witness </li></ul><ul><li>13.Consent to, and if requested allow, interviews by counsel from both sides prior to trial. </li></ul><ul><li>14.Make an effort to inform the Court of the nature and implications of pertinent evidence if reasonably sure that this information will not be disclosed to the Court. </li></ul><ul><li>15.Maintain an attitude of independence and impartiality in order to ensure an unbiased analysis of the evidence. </li></ul>
  40. 40. <ul><li>Expert Witness </li></ul><ul><li>16.Carry out the duties of the profession in such a manner so as to inspire the confidence of the public. </li></ul><ul><li>17.Regard and respect their peers with same standards that hold for themselves. </li></ul><ul><li>18.Set a reasonable fee for services if it is appropriate to do so, but do not accept fees on a contingency basis. </li></ul>
  41. 41. <ul><li>Expert Witness </li></ul><ul><li>19. Report to the American Board of Criminalistics any violation of these Rules of Professional Conduct.&quot; </li></ul>
  42. 42. <ul><li>Expert Witness - Attorney </li></ul><ul><li>Facts: Recently, a witness was contacted by an attorney and given basic facts concerning a case in which the attorney wanted to utilize her expertise and services. She asked that the attorney forward to her certain information so that she could determine whether or not she could be of service to him in this matter. </li></ul>
  43. 43. <ul><li>Expert Witness - Attorney </li></ul><ul><li>Facts: After receiving the materials and reviewing the same, she concluded that she could indeed provide services to the attorney in the case. As such, she had additional materials forwarded to her and a retainer for her services. Shortly after becoming employed in this matter, the opponent attorney contacted the attorney who employed her services and informed him that about one year prior to her employment engagement, the opponent attorney had spoken with her about the case. </li></ul>
  44. 44. <ul><li>Expert Witness - Attorney </li></ul><ul><li>Facts: She reviewed her files extensively and found that she had met with the opponent attorney approximately one year prior; however, she did not review any materials nor discuss the merits of the case, and she was not aware of the parties involved. She chose not to work on the case for the opponent attorney because a proposed fee arrangement for her services was not acceptable. She notified the attorney who employed her services and provided all information concerning her prior involvement. </li></ul>
  45. 45. <ul><li>Expert Witness - Attorney </li></ul><ul><li>Facts: After a review of all facts, the attorney who employed her wanted her to remain on the case and assures her that there is not a conflict of interest because she was never given details of the case, and particularly because she never had discussions concerning the merits of the case. </li></ul>
  46. 46. <ul><li>Expert Witness - Attorney </li></ul><ul><li>Question: As a forensic expert, who wants to follow proper and sound legal and ethical standards, what decision should she make or how should she approach this dilemma, especially since she has received a retainer and worked on the case.   </li></ul>
  47. 47. <ul><li>Expert Witness - Attorney </li></ul><ul><li>Answer: This question exposes an interesting issue that many forensic experts have encountered or at some time in their career will confront. Often, attorneys will contact many experts as a ploy to disqualify them from being hired on a case by the opponent party. Other times, attorneys are merely scouting the field for information or other purposes. </li></ul>
  48. 48. <ul><li>Expert Witness - Attorney </li></ul><ul><li>Answer: If an expert could be disqualified from working on a case merely because the expert discussed certain general aspects of a case, then attorneys could call all experts known to be knowledgeable in a particular field only for the purpose of disqualification. Hence, there must be some standard or test that an expert can use to determine the line between mere communication and employment. </li></ul>
  49. 49. <ul><li>Expert Witness - Attorney </li></ul><ul><li>Answer: In a effort to determine this test, it has become necessary to turn to recent court decisions on this subject. Having researched this question, it appears that there are several factors courts have used in determining whether to disqualify an expert given the above this type of situation. Those factors are as follows: </li></ul>
  50. 50. <ul><li>Expert Witness - Attorney </li></ul><ul><li>1.Did the initial attorney inform the expert that their discussions were confidential? </li></ul><ul><li>2.Were any materials reviewed by the expert that were marked confidential or attorney work product? </li></ul>
  51. 51. <ul><li>Expert Witness - Attorney </li></ul><ul><li>3.Was the expert ever asked to sign a confidentiality agreement? </li></ul><ul><li>4.How many discussions were held and over what period of time? </li></ul>
  52. 52. <ul><li>Expert Witness - Attorney </li></ul><ul><li>5.What type of documents were reviewed (publicly filed or confidential)? </li></ul><ul><li>6.What type of information was conveyed to the expert (general, not specific data, not confidential, trial strategy, plans for method of proof, contentions, etc.)? </li></ul>
  53. 53. <ul><li>Expert Witness - Attorney </li></ul><ul><li>7.What was the length of discussions or meetings with the expert? </li></ul><ul><li>8.Did the expert provide the attorney with any confidential information? </li></ul>
  54. 54. <ul><li>Expert Witness - Attorney </li></ul><ul><li>9.Was the expert actually retained by the attorney? </li></ul><ul><li>10.Did the expert voice any concerns about being retained? </li></ul>
  55. 55. <ul><li>Expert Witness - Attorney </li></ul><ul><li>11.Was the expert requested to perform any services for the attorney? </li></ul><ul><li>12.Was the expert ever compensated by the attorney? </li></ul>
  56. 56. <ul><li>Expert Witness - Attorney </li></ul><ul><li>If you encounter the above situation, it would be wise to request the hiring attorney to file a motion with the court requesting a ruling, given the particular facts, on any disqualification. This procedure will protect you from any future potential liability or ethical complaints. If the attorney does not want to follow this procedure, then you should give careful consideration to withdrawing from the employment. </li></ul>
  57. 57. <ul><li>Expert Witness </li></ul><ul><li>A few closing thoughts </li></ul><ul><li>Ethics and confidentiality </li></ul><ul><li>Preparation, objectivity, opinion </li></ul><ul><li>Malpractice </li></ul>

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