Sources of An Expert's Ethical Obligations

Experts specialize in objectivity - Lawyers are rewarded for subjectivity. Experts are sometimes tempted to skew their evaluation of the facts in favor of the party who hired them. One reason for this temptation is the high fee paid to experts who can help a party win in trial. Another reason is that science requires objectivity, while the legal system rewards advocacy, which by its nature, is more subjective.

The lawyer's job is to interpret evidence in favor of his client. Indeed, given the constraints of the Canon of Ethics, an attorney must "zealously" represent his client. ABA Canon of Ethics EC 7-1; DR 7-101(A)(1). An expert should focus on "zealously" guarding the truth.

In some circumstances, an attorney has an obligation to reveal to the court important legal precedents and material facts which may be adverse to his client's interests. Di Sabatino v. State Bar, 27 Cal.3d 163, 162 Cal.Rptr. 458 (1980). Nevertheless, when an attorney is dealing with basic technical facts which are open to interpretation, the attorney's job is clear cut. He must find all interpretations favorable to his client and persuade the trier of fact to accept his interpretation, as long as he does not misrepresent the facts.

The expert, on the other hand, should explain, not persuade. Aside from the oath a testifying expert takes at trial or deposition, no specific law or ethical code controls the conduct of experts who testify in civil litigation. However, many guidelines are available to assist the expert who feels caught in the adversary system.

How Important Is The Oath?

An expert who gives testimony in deposition or trial is administered an oath requiring that he vouch for the truthfulness of his testimony. For example, Federal Rule of Evidence 603 requires that:

"Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to waken the witness' conscience and impress the witness' mind with the duty to do so."

Similarly, experts are occasionally required to sign declarations in support of summary judgment motions "declaring under penalty of perjury that their statements are true and correct." 28 U.S.C. §1746.

What Is The Value of An Oath?

All oaths or declarations inherently represent a witness's commitment to the system that he or she will tell the truth. Sounds simple, but what is the truth? Experts give "opinions." The "truth" of an opinion is open to debate. Philosophers and theologians have written tomes on this subject, all disagreeing on what is true. Accordingly, oaths and Declarations Under Penalty of Perjury, may not effectively guarantee an expert will tell the truth. Moreover, all experts do not have the same commitment to our system of justice to guarantee unadulterated truth.

Perhaps the most significant consequence of an expert's failure to testify truthfully, is that the trier of fact may disregard the expert's opinion. Thus, it is the lay person's perception of truthfulness that is critical. The real effectiveness of the oath is the expert's implied promise of truthfulness and the penalty which will result if the expert is not perceived as truthful. As a practical matter, if an expert cannot convince a jury, or a jury does not believe him, attorneys will not hire him again.

Expert Rules of Professional Conduct

When one thinks of a code ofprofessional ethics, the Hippocratic oath quickly comes to mind. Eugenie Anne Gifford & Artes Moriendi, Active Euthanasia and the Art of Dying, 40 UCLA L. REV. 1545, 1554 (1993). However, many physicians and medical experts consider the Hippocratic oath a quixotic and impractical platitude. Like many such pronouncements, such as the "golden rule," they sound good but are hard to implement.

Many specialty fields have their own rules of professional conduct which the memberships' leaders design to police their own professions. The normal consequences of failing to abide by these rules are the denial of privileges and ostracization by one's fellow experts. Generally, these rules cannot be enforced in civil litigation. Complaints can be made to the licensing authority or professional organization, but an expert's opinion testimony is absolutely immune in civil litigation. Carden v. Getzoff, 190 Cal.App.3d 907, 913-916, 235 Cal.Rptr. 698 (1987); Bernstein v. Alameda etc. Med. Assn.,139 Cal.App.2d 241, 245-246, 182 Cal.Rptr. 438 (1956). As a consequence, experts can argue that any censure resulting from opinions they gave on the witness stand or at deposition violates such immunity.

It should be noted that state and federal government regulations often control the licensing and professional conduct of various professionals and experts. See, e.g., Cal. Bus. & Prof. Code. However, almost without exception, these regulatory precepts do not purport to control experts' ethics in litigation.

The ineffectiveness of rules of professional conduct created by private organizations in the context of civil litigation should not, however, be construed to suggest that they are useless. To the contrary, such efforts are valuable in that they provide specific guidelines in the litigation context to help the expert understand what constitutes ethical conduct. An example of an actual code of conduct for testifying experts from the Rules of Professional Conduct for the American Board of Criminalistics follows:

"Experts in the field of forensic science (criminalistics) are constrained as follows:

1. Comply with the By-Laws and Regulations of their organization
2. Treat all information from any agency or client with the confidentiality required.
3. Treat any object or any item of evidentiary value with the care and control necessary to insure its integrity.
4. Ensure that all exhibits in a case receive appropriate technical analysis.
5. Utilize standards and controls to conduct an objective examination and analysis.
6. Refrain from using techniques and methods which are known to be inaccurate or unreliable.
7. Make full and complete disclosure of the findings to the submitting agency.
8. Prepare a report of findings and conclusions in all cases. [Author's Note: this may conflict with attorney preference regarding a written report.]
9. Make and keep work notes on all items, examinations, results and findings at the time that they are done. [Author's Note: litigation counsel may recommend differently.]
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.
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.
12. No exaggeration, embellishment or other any misrepresentation of qualifications.
13. Consent to, and if requested allow, interviews by counsel from both sides prior to trial.
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.
15. Maintain an attitude of independence and impartiality in order to ensure an unbiased analysis of the evidence.
16. Carry out the duties of the profession in such a manner so as to inspire the confidence of the public.
17. Regard and respect their peers with same standards that hold for themselves.
18. Set a reasonable fee for services if it is appropriate to do so, but do not accept fees on a contingency basis.
19. Report to the American Board of Criminalistics any violation of these Rules of Professional Conduct."

To the extent various specialties and professions have their own codes of professional conduct, members who have sworn to abide by them should honor them. Nonetheless, experts may testify in trial even if they have not sworn to uphold a code of professional conduct. Accordingly, the lack of uniform application of these rules limits their effectiveness.

The Attorneys' Code of Professional Conduct - Relevancy To Experts?

The American Bar Association sets mandatory rules of professional conduct for attorneys and recommends ethical guidelines that attorneys should follow. ABA Model Rules of Professional Conduct (1983). In addition, most states have codified ethical rules that impose mandatory requirements for those utilizing a professional license in that jurisdiction. See, e.g., Cal. Bus. & Prof. Code §6068. For example, California requires that an attorney:

"employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." Cal. Bus. & Prof. Code §6068(d).

Legislatures have the power to regulate professions for the protection of citizens of the state, often through state codes of professional responsibility. These codes embody strictures which go beyond a purely moralistic rationale and have as their basis maintaining public order, controlling economic trafficking and preserving public confidence. Reeves, Legislators as Private Attorneys: The Need for Legislative Reform, 30 UCLA L.REV.1052, 1074 (1983).

To the extent an attorney hires an expert, the expert is the attorney's agent. RESTATEMENT (SECOND) OF AGENCY§1 (1958). On a broader scale, the expert is also the client's agent in that the attorney hired the expert on the client's behalf. Thus, as a matter of agency and contract, an expert should conform to the attorney's obligations in representing the client. Andrews, Nonlawyers in the Business of Law: Does the One Who Has the Gold Really Make the Rules, 40 HASTINGSL.J. 577, 615-16 (1989). Moreover, as a practical matter, experts are bound by those rules of professional conduct and ethical obligations which were written for attorneys. Id.at 615. An attorney will be reluctant to rehire an expert for another case if that expert conducted himself in a manner which caused the attorney professional embarrassment.

While an attorney should strive to ensure that an expert conducts himself in conformity with the ethical guidelines under which the attorney is laboring, it is unlikely that an expert can be penalized or sued simply because the expert did not learn the attorney's ethical obligations and did not conform to them. Id.at 616. Any recourse for such violations would be against the attorney. While attorneys must and should explain the basic rules of confidentiality and conflict, it is advisable that experts become very familiar with attorneys' obligations to their clients; thus, knowledge becomes a form of employment insurance.

THE REMAINDER OF THIS ARTICLE ADDRESSES SOME OF THE MORE COMMONLY REOCCURRING OBLIGATIONS THAT INVOLVE EXPERTS AND PROVIDES PRACTICAL GUIDANCE ON HOW EXPERTS SHOULD CONDUCT THEMSELVES IN CIVIL LITIGATION SO AS TO EARN RESPECT, PERSUADE JURIES, AND SERVE AS VALUABLE MEMBERS OF THE JUDICIAL SYSTEM.

Experts' Duties of Confidentiality

An expert in civil litigation who was retained by an attorney on a client's behalf, should be warned to preserve client confidences. Once an expert is aware of this duty, he has an obligation to treat information obtained from the client directly or through the attorney in confidence. Id.at 615. This duty arises as a result of the fact that the attorney hired the expert to act for the client and the fact that the attorney is sworn by his code of conduct to maintain and preserve the client's confidences. In this regard, the expert is in the same position as the attorney's secretary, paralegal, investigator, or anyone else the attorney hires to work for the client. Id.at 615. Good attorneys explain to those they hire, including their experts, that clients expect confidentiality and that without the client's permission, they may not reveal confidential information. As in all matters involving ethics, principles are easy to understand in theory, but hard to apply in actual circumstances. The following examples illustrate how confidentiality problems arise.

Can Prior Confidential Commitments Conflict With A New Assignment?

Experts, because they tend to be accomplished and respected, are often privy to confidential information. People who are experts serve on boards of directors, design and test new products, and develop ideas which become the subject of trademarks. They are privy to customer lists and other proprietary business information, hold government secret classification status and may have moral commitments to keep information confidential. All of these prior confidential commitments could come into conflict when an expert agrees to act as a consultant and possibly testify.

Often, a consultant's value to an attorney is his industry experience, some of which was acquired in a confidential context. Indeed, attorneys often hire an expert precisely because the expert is well-connected in a particular industry and knows a particular product. Thus, a current client's demands for investigative vigor could result in a clash of confidences with the expert's prior confidential relationships.

Prior product failures, other accidents, similar injuries, related malfunctions, professional faux pas, academic and business failures, etc. constitute bonus information a consultant can provide an attorney which may make or break a case. In such circumstances, the consulting expert is well-advised to notify the attorney immediately of the potential conflict between confidential obligations. If necessary, the expert should consider enlisting an objective third party to sort through the respective obligations and determine whether the expert may continue to serve the new client or should withdraw from the case to avoid improperly disclosing a confidence. This analysis may be important for an attorney who may be disqualified from a case if he hires an expert with prior confidences. Shadow Traffic Network v. Superior Court of Los Angeles County, 24 Cal.App.4th 1067, 29 Cal.Rptr.2d 693 (2nd Dist. 1994).

In some circumstances, the parties who were involved in the prior confidential relationship may have no ongoing expectation that the expert will continue to treat such matters as confidential. Perhaps the expert may obtain permission from the prior confidential party on a case-by-case basis to allow him to fulfill his responsibilities to the current client. In such circumstances, the expert or attorney should obtain written permission after disclosing the potential conflict of interest in writing to all necessary parties.

Experts may be tempted to remain reticent about prior confidential relationships that may interfere with their civil litigation consulting occupation. However, experts who fail to deal squarely with such problems run a grave risk. Some courts have disqualified such experts from testifying. Id. Moreover, if the prior confidential party complains publicly about the breach of confidence, the expert's reputation may be permanently destroyed. Experts' reputations are their lifeblood and they would be better off losing a consulting opportunity than risking public embarrassment and damage to their professional reputation by failing to deal objectively with prior confidential relationships.

The Importance of Protecting Client Confidences

Whenever an expert works on a case for an attorney, the expert must uncover not only those facts beneficial to the client's position, but also those which harm the client's position, particularly if the opposing counsel will be able to locate the information. To represent the client effectively, the attorney needs to locate any harmful information and determine how to address it. An expert must be careful not to discuss during social conversations or professional meetings a client's confidential information obtained while working for an attorney, even in the diligent pursuit of investigative leads.

When talking with an investigative lead, the expert may be tempted to reveal certain information to obtain more information. He must do so cautiously because the client's reputation, business and other interests may be permanently damaged if confidential information is provided to third parties who could then turn around and use the information to the client's disadvantage. Even if information an expert obtains and provides to an attorney is disclosed to the other side through formal discovery, such specific disclosure does not relieve the expert of the obligation to treat such matters as confidential. The expression "a matter of public record" may be true with regard to matters disclosed in response to interrogatories, requests for production, requests for admission and depositions, but the availability of such information to those who know how to uncover it is not the same as a license to publicly disseminate a client's dirty laundry.

In contemporary civil litigation, litigants do not usually file discovery documents in court unless a matter goes to trial. Note, The Agent Orange Case: A Federal Interpretation of the Federal Rules of Civil Procedure Granting Pretrial Access to Discovery, 42 STAN. L. REV.1577, 1582 (1990). Moreover, courts may seal files or review certain discovery matters in camera (in the privacy of their chambers or in the courtroom without the public present and without a court stenographer's recordation). In these circumstances, an expert who divulged information at a cocktail party or professional seminar may have interfered with the attorney's efforts to protect the client's privacy and reputation. Even if embarrassing evidence uncovered by an expert and divulged through discovery becomes a matter of public record, experts must understand that clients who are paying the expert's fees do not expect the expert to discuss this information outside the litigation process.

An attorney's duty of confidence to his client extends beyond the conclusion of the case. Hejmanowski, An Ethical Treatment of Attorneys' Personal Conflicts of Interest, 66 S. CAL. L. REV. 881, 901 (1993). Impliedly, the same is true for an expert. Therefore, an expert must be cautious not to divulge confidential information obtained while representing a client even when hired by someone else to handle a similar case. A fine line separates an expert's right to use facts which are part of the public domain or obtained during work assignments and his duty to preserve confidences obtained representing a client. If there is any doubt in this regard, the expert should check with the attorney he worked for on the previous case to determine whether there is an ongoing expectation of confidentiality.

What Experts Need To Know About Attorney-Client Privilege and Attorney Work-Product

There is an attorney-client privilege for confidential communications whereby an attorney provides advice to a client. Federal Rule of Evidence 503; Cal. Evid. Code §952. This privilege also applies to confidential communications between a consultant working for the attorney and the attorney's client. Grand Lake Drive In Inc. v. Superior Court, 179 Cal.App.2d 122, 125 3 Cal.Rptr. 621, 625 (1st Dist. 1960). Thus, phone calls, memoranda, and other forms of communication transmitted to the client at the attorney's request for the purpose of giving advice may be treated as attorney-client privileged communications if they were intended to be confidential. In re Navarro, 93 Cal.App.3d 325, 330, 155 Cal.Rptr. 522 (1979). These documents and recordings should not be released to third parties without the attorney's permission. A release may waive the privilege. U.S. v. Zolin, 809 F.2d 1411, 1415 (9th Cir. 1986).

In addition to the Attorney Client Privilege, attorneys and their consultants enjoy a qualified immunity for their work product. FRCP 26(b)(3); Cal. Civ. Proc. Code §2018; Rodriguez v. McDonnell Douglas Corp., 87 Cal.3d 626, 647-48, 151 Cal.Rptr. 399, 410 (1978). The following examples illustrate the application of the work product doctrine:

• Attorney asks consultant to prepare a report analyzing the facts in the context of the defense theories and send it to the client.
• Attorney requests consultant to conduct computer research for the client's benefit and communicate the results to the client.
• Attorney instructs consultant to videotape or photograph certain exhibits, scenes, persons, etc. to develop evidence for the client's benefit; attorney sends the results to the client for review.

In these examples, the attorney employs his work-product (e.g., a choice of briefing, evidence creating and photographic opportunities) and directs the consultant to use the work product. Communicating the specially created demonstrative evidence and other work product to a client to help plan trial strategy may further cloak the work product with attorney client privilege and prevent its discoverability. Mitchell v. Superior Court, 37 Cal.3d 591 n.8, 208 Cal.Rptr. 886, 897 n.8 (1984). To avoid waiving the privilege, consultants should not show their work product to anyone outside the attorney's team unless the attorney approves.

From these examples, one can see that almost anything a consultant does in a case on a client's behalf, under direction of the attorney, may constitute confidential attorney work product. If communicated to the client in confidence to give advice, it may become attorney-client privileged; however, there is a major exception to this rule if the consultant becomes a testifying expert, e.g., FRCP 26(b)(4).

A Consultant's Confidential Work Product Becomes Discoverable When The Expert Is Designated To Testify

When an attorney initially hires an expert for a litigation matter, the expert's proper title during the discovery phase is "consultant". The attorney may ask the consultant to investigate, research, consult, advise, experiment, test, study, read and perform many other functions. Normally, such activities are conducted confidentially and, as discussed above, opposing parties cannot obtain the expert's name or work product without a special court order. Kenney v. Superior Court, 255 Cal.App.2d 106, 63 Cal.Rptr. 84, 89 (3rd Dist. 1967). Thus, to the extent the consultant uncovers information unfavorable to the client, the other side cannot obtain such information absent special circumstances. Kizer v. Sulnick, 202 Cal.App.3d 431, 248 Cal.Rptr. 712, 718 (1988).

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 notification is called "identification" in federal practice and "designation" in California state practice. See Federal Rule of Civil Procedure 26(b)(3), (4); Cal. Civ. Proc. Code §2034; Williamson v. Superior Court,21 Cal.3d 829, 148 Cal.Rptr. 39, 42 (1978). With identification or designation comes the opposing party's right to take the deposition of the newly announced expert and to uncover all the materials associated with the expert's analysis which in any way form the basis for his opinions. Richard v. Jennings, 16 Cal.App.4th 81 n.8, 19 Cal.Rptr.2d 790, 793 n.8 (5th Dist. 1993). Case law conflicts over the extent to which opposing parties can inquire about work done by a testifying expert while he was acting as a consultant in a confidential "advisory" capacity (see, e.g., National Steel Products Co. v. Superior Court, 164 Cal.App.3d 476, 210 Cal.Rptr. 535 (1985)). Most courts interpret these rules broadly and allow interrogating attorneys at depositions and at trial to uncover almost everything the expert has done from the day the attorney hired him. Rodriguez v. Superior Court, 14 Cal.App.4th 1260, 18 Cal.Rptr.2d 120, 124-25 (5th Dist. 1993). Thus, the expert's notes, calculations, correspondence, bills, travel logs, work logs, annotations, conversations, interviews, library materials, telephone notes, etc. may be discoverable. Woods v. Superior Court, 25 Cal.App.4th 178, 30 Cal.Rptr.2d 182, 184 (4th Dist. 1994). Also, to the extent the documents are attached to the deposition, they may become a matter of public record. Thus, if an attorney anticipates that he will designate a consultant as an expert, the attorney should take care regarding what attorney work product he discloses to the consultant and what experiments he asks the consultant to perform because the results may have to be disclosed.

It is incumbent upon a consultant to 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. If such information comes to light after the attorney designates the expert, the attorney may still withdraw the expert, but certain adverse consequences may result. For example, the opposing party may still take the deposition of the withdrawn designated expert unless his confidential consultant status is restored and there is no suppression of evidence. Williamson v. Superior Court, 21 Cal.3d 829, 148 Cal.Rptr. 39, 42 (1978). Thus, even if the attorney hires and designates a new expert to testify at trial, the opposing lawyer may take the withdrawn expert's deposition when amenable to a subpoena in order to show any inconsistencies between the two experts' opinions.

Avoiding Ethical Conflicts of Interest

The law of conflict of interest is extremely complicated, but suffice it to say that a potential conflict clearly exists when an attorney attempts to oppose a party he previously represented. Zimmerman v. Zimmerman, 16 Cal.App.4th 556, 20 Cal.Rptr.2d 132, 135 (1st Dist. 1993). A potential conflict of interest exists any time a prior representation may in any way impair loyalty to a current client. Zador Corp. v. D.K. Kwan,31 Cal.App.4th 1285, 37 Cal.Rptr.2d 754, 758 (6th Dist. 1995). Moreover, attorneys must be vigilant to avoid even the appearance of impropriety, including in the use of their experts. ABA Model Code of Professional Responsibility, Canon 9. This rule was created to maintain public confidence. In that an expert is an attorney's agent, the expert must also consider whether a prior representation creates an actual or potential conflict with the current client's affairs or creates even the appearance of impropriety.

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. A prior client may be concerned that confidential information previously disclosed may in some way assist the expert in his current job against the interests of the prior client. In all likelihood, such a conflict cannot be waived unless the prior client is satisfied that there is no risk of harm.

As an illustration, a potential conflict of interest may exist where an expert worked for a subsidiary division of a large corporation and had access to confidential information in that division only. If the expert is now retained to testify against the parent corporation or another subsidiary with which he had no prior involvement, the potential conflict may be waiveable. The circumstances in which these conflicts arise are so varied that examples cannot be given in this chapter to cover all such situations, but the key to dealing with potential conflicts is to obtain objective help to analyze them. Remember, the person involved in the potential conflict is often the least capable of objectively evaluating it.

Ensnared By Social and Economic Conflicts of Interest

While the most serious conflicts of interest result from the risk that confidential information may be improperly disclosed, some conflicts are based on competing economic or social interests. Thus, an expert may be solicited to testify against an entity he previously served, which may result in social embarrassment to the prior entity but no damage to the confidential relationship. In such circumstances, the conflict may not be sufficient to prevent the expert from working for the new party or may be easily waived. Examples include situations in which an expert testified favorably for a certain industry or particular social position but now chooses to testify for a party on the other side of the same issue. In this regard, the expert may be particularly valuable to the new client who can boast that the expert testified against the client's position on many previous occasions but that in this case the facts overwhelmingly favor the client's position. For example, in the O.J. Simpson trial, the defense retained a DNA expert who had previously testified for the prosecution on many occasions. Similarly, engineers who worked for or testified in defense of manufacturers on product safety issues may testify against such manufacturers if they are not using confidential information to their prior employer's disadvantage or if sufficient time has elapsed since they worked for the manufacturer. As a practical matter, an expert who changes sides on social or economic issues runs the risk of being "black-listed" or "black-balled" by the industry in which he previously worked. This is really not an ethical issue, but is an economic reality. The new client can argue that such a switch is an indication of the expert's high level of honesty since he is willing to testify in the face of the potential backlash.

Expert Witness Immunity?

A growing area of concern for testifying experts involves the risk that they may be sued for professional malpractice in connection with their work for an attorney on a client's behalf. As a general proposition, experts are absolutely immune from lawsuits for the expert opinion testimony they give in deposition or trial. Briscoe v. LaHue, 460 U.S. 325 (1983). In previous years, the immunity extended to their litigation support, analysis, and trial preparation. However, in recent years, courts have shown a willingness to allow litigants to sue their own experts for malpractice where the experts were professionally negligent in their trial preparation or in other litigation support activities. See Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal.App.4th 392, 6 Cal.Rptr. 78 (2d Dist. 1992). Such cases often involve negligent damages calculations or other objectively verifiable work-product errors which are not matters of opinion. Joy Lazo, True or False: Expert Testimony on Repressed Memory, 28 LOY. L.A. L. REV. 1345 (1995). In these situations, the issue usually arises as to whether the attorney is also guilty of negligence or malpractice in allowing mistakes to be made due to inadequate supervision of the expert. Indeed, the client may sue both the expert and the attorney, particularly where the attorney alone does not have adequate assets or malpractice insurance to cover the client's loss. Accordingly, larger consulting companies have begun to acquire professional liability insurance to cover their member experts' litigation activities.

Commonly Recurring Ethical Challenges

Consultant Handling of Adverse Evidence

CONFIDENTIAL CONSULTANT UNCOVERS EVIDENCE ADVERSE TO CLIENT WHICH MAY JEOPARDIZE THE LIKELIHOOD THAT THE ATTORNEY WILL DESIGNATE HIM TO TESTIFY IN THE CASE - As a scientist or technical specialist, a confidential consulting expert has a professional obligation to uncover all relevant facts in connection with the issue being investigated. As an employee of the attorney and client, he has an obligation to inform the attorney of the information, whether it is beneficial or harmful. Consequently, if the expert discloses the information to the attorney and is "benched" instead of designated as a testifying expert, the attorney may hire the expert again in a later case. However, if the expert fails to disclose the harmful information which the other side later discovers, the client's case will be hurt and the attorney will probably never hire that expert again. The attorney will likely presume that the expert was not good enough to find the information.

Attorney Shopping For Favorable Opinion

AN ATTORNEY MAKES CLEAR THAT HE IS SHOPPING FOR A FAVORABLE OPINION AND ASKS THE EXPERT TO TAKE A PRELIMINARY LOOK AT CERTAIN EVIDENCE WITH THE INDICATION THAT HE WILL BE HIRED IF HIS OPINIONS ARE FAVORABLE - It is improper for an attorney to attempt to influence an expert to offer favorable opinions. On the other hand, if an expert comes up with unfavorable opinions while acting as a confidential consultant, an attorney is not required to designate that expert to testify on the client's behalf, but can instead locate a new expert who may honestly offer a more favorable opinion.

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.

When the expert renders his tentative opinions, the attorney may attempt to persuade the expert to skew his opinions to help the client. In some circumstances, an attorney is acting unethically and the expert should not cooperate. In other circumstances, the attorney is merely being a zealous advocate, may not understand the technical field involved, and is trying to ascertain whether the expert has performed a sufficiently complete analysis to render the right opinion.

This author has dealt with experts who delivered tentative opinions unfavorable to the client in circumstances where the attorney knows from his experience in the field that the expert did not investigate all the leads, facts and evidence. In such circumstances, the attorney is not acting unethically if he asks the expert to go back and check additional matters to determine whether they will change his opinion. However, if after completing sufficient work, the expert is still convinced that his original opinion is correct, he must tell the attorney that he cannot change his opinion. It is also incumbent upon a confidential consulting expert to advise an attorney of those areas of research, testing, or investigative leads which may produce more evidence unfavorable to the client.

Designation Without Notice To Expert

CONSULTANT LEARNS THAT ATTORNEY HAS "DESIGNATED" THE EXPERT WITHOUT ANY REVIEW OF THE CASE BY THE EXPERT - An attorney in some jurisdictions is required to represent, under penalty of perjury, that a consultant has agreed to testify, has opinions in a case and is prepared to testify. See Cal. Civ. Proc. Code §2034(f)(2). Designating an expert before the expert reviewed the case is a discovery abuse which is sanctionable and unethical. An expert who allows this practice may not only waive any compensation for the work that he should have done before reaching an opinion, but allows himself to be branded a "whore" who will give favorable opinions without even knowing the facts.

Attorney Discloses Tactics To Expert Who Is Then Deposed

ATTORNEY AND CONSULTING EXPERT DISCUSS TRIAL TACTICS AND EVIDENCE WITH A CONSULTANT WHO IS DESIGNATED AS A TESTIFYING EXPERT - As previously mentioned earlier, once an attorney identifies or designates a confidential consultant as a testifying expert, all the expert's analyses and conversations usually become fully discoverable. If the attorney may has revealed trial tactics, proposed testimony and client confidences, they may be open to discovery. If the opposing attorney asks the expert about such matters under oath at deposition or trial, the expert may be obligated to divulge what he has learned. Some experts profess a lack of recollection of such conversations or insist that they did not consider these matters in forming their opinions. This is an area where, as a matter of practicality, an expert often must choose between being a loyal "team player" and an honest person responding to questions under oath. Each expert must decide what truth and honesty mean in these circumstances. In reality, the attorney made the mistake. A well-advised and experienced expert should ask the attorney during the conversation whether the attorney is burdening the expert with information the expert does not need in order to formulate his opinions.

Experts who are inclined to have "selective" memories should consider that, in trial, skillful opposing counsel can show that the expert and the attorney engaged in a lengthy deposition briefing conference resulting in testimony in which the expert clearly recalled his opinion and all bases for his opinion, but not any matters discussed with the attorney. Such testimony questions the reliability of the expert's opinions if he cannot remember any conversations.

Problems regarding expert meetings are magnified when attorneys attempt to hold meetings with testifying experts in groups that include co-counsel, corporate executives, other experts, investigators, paralegals and lay witnesses. Interrogating counsel should be able to ask what any of those present said to each other. Bear in mind that the expert's credibility can be completely destroyed if the opposing party is able to obtain testimony from any of these people by subpoena about the conferences which the expert professes to have forgotten, particularly if case-sensitive matters bearing on the expert's opinions were discussed. Group briefings should be kept to a minimum and never include more than designated experts, clients, attorneys, their staff and investigators.

Expert Surprised With Evidence At Deposition

ATTORNEY UNCOVERS ADVERSE EVIDENCE BUT DOES NOT DISCLOSE IT TO THE EXPERT - In trial, an expert may find out that his opinion is open to attack because evidence was available and apparently known by the attorney but the attorney did not provide it to the expert. The best protection against such impropriety is thorough preparation. The expert should conduct a complete investigation or make a point of asking the attorney the appropriate questions to ferret out all information needed to properly form an opinion. If the attorney does not disclose information, the expert may be embarrassed at trial. The expert may have no recourse other than to refuse to work for that attorney again. On the other hand, if interrogating counsel asks the expert why he did not know the information, the simple answer may be that it could not be uncovered and if it was not known it was not disclosed; thus, the expert's reputation is preserved.

Experts Should Not Be Compensated On A Contingency

ATTORNEY PROPOSES FEE ARRANGEMENTS WHICH TO SOME EXTENT PROVIDE THE EXPERT A CONTINGENT RECOVERY IF HIS OPINION HELPS THE CLIENT WIN - Contingent recoveries for testifying experts are prohibited by state law and the Canon of Ethics. Cal. Rules Prof. Conduct 5-310(B); David Medine, The Constitutional Right to Expert Assistance for Indigents in Civil Cases, 41 HASTINGSL.J. 281, 294 n.59 (1989). 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. Ojeda v. Sharp Cabrillo Hosp., 8 Cal.4th 1, 15, 10 Cal.Rptr.2d 230, 239 (1992). However, expert activity leading to testimony cannot be compensated on a contingent basis. Note, that contingent compensation is not always obviously a percentage of the recovery; it may consist of higher hourly rate payments, bonuses, fringe benefits, premiums, or any form of contingent financial incentive or reward.

Expert Creates Notes Which Are Harmful To Client

EXPERT ARRIVES AT THE DEPOSITION BRIEFING CONFERENCE WITH A BRIEFCASE FULL OF NOTES, REPORTS, CALCULATIONS AND COMMENTS. THE ATTORNEY REVIEWS THEM, REALIZES THAT MANY HARM THE CLIENT AND ATTEMPTS TO HIDE THEM - The temptation in such circumstances is to rationalize that the documents are not necessarily discoverable and can be kept in the expert's briefcase. However, if the opposing party served a notice of deposition and document demand asking the expert to produce allmaterials he used and which form the basis of his opinions, failing to produce such materials is discovery abuse. Hiding evidence is also unethical and may be grounds for sanctions against the attorney. Destroying material is not only unethical, but may constitute a tort or criminal violation for the destruction or spoliation of evidence. Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, 832 (2d Dist. 1984). If the attorney confiscates existing expert work product or orders the expert not to turn it over, the attorney may be sanctioned.

Once work product is created in connection with litigation, it usually may not be destroyed! What if it has no evidentiary value and is destroyed in the context of the proprietor's normal "document retention and destruction policy?" Recognize that the opposition will want to discover whatever the expert has jotted down because it may lead to the discovery of admissible evidence.

Some professional consultants have their own "document retention and destruction policy" so that as they create temporary or draft notes and collect research materials in the process of his investigation, they weed out and destroy those which are unnecessary for their opinion. See People v. Metton,44 Cal.3d 713, 244 Cal.Rptr. 867, 889 (1988). The expert should save all materials which in any way form the basis for his opinion. What is not clear in some jurisdictions is what may be done with draft notes and preliminary research materials which do not form the basis of an opinion. Moreover, experts are not permitted to destroy anything which may constitute favorable evidence for the opposition. If the expert destroys anything else, a discovery dispute may arise. The laws of the various states vary as to the outcome.

Conclusion

An expert working in an attorney's world must be vigilant to ensure that his reputation is preserved and his testimony is honest. One of the best ways to avoid mistakes in this regard is to learn the business of litigation and understand one's role in it. If this chapter raised even more questions than it answered, then I have been of service to you.