subject: Ways to Be Ethical as an Expert Witness [print this page] Ways to Be Ethical as an Expert Witness Ways to Be Ethical as an Expert Witness
The expert witness must be an objective contributor to the legal process. You have a responsibility to present technical truths that you discover. If the other side can show that you are not objective, the judge can disallow your testimony and you will have wasted your work and everyone else's time. Leave the advocacy to the attorney; keep the objectivity for you.
So, you may wonder what ethical questions you should consider. How will these questions affect your work as an expert witness?
first, you should not falsify or overstate your credentials. It's likely that opposing counsel will uncover those lies and cast justifiable doubt on the rest of your testimony. Corporate employers are much more lax in checking credentials on a CV than are well-trained Lawyers. Clean up your resume, and write the truth. Let your experience lead you to the cases for which you are qualified.
Do not take on a job if it stretches beyond your credentials and competence. Opposing counsel can easily determine when you testify outside the scope of your core expertise. A common result is that the court rejects your status as an expert witness and excludes your testimony.
Finally, you should not even consider an expert witness part if you have any conflicts of interest. For example, it is a conflict if you are working on another, concurrent case for one of the Lawyers. It is also a conflict if you have previously discussed details of the case with members of the other side. If you suspect a conflict, discuss it in advance before the attorney hires you.
If no problems exist with a case and you take it on, you will shortly recognize what steps should be undertaken as part of a thorough investigation. Once you identify those steps, you have to take them. You cannot skip steps and say that you did them. You cannot have anyone else do the steps for you, and then say you did them. You cannot change the results of any of the steps. You also cannot insert falsified data into a set of otherwise valid results. Just do what should be done, and do it honestly.
The judicial system expects you to avoid becoming an advocate for the side that hired you. Objectivity and an ethical approach to your work as an expert witness demand that you do the work initial and then draw your opinions afterwards.
Even if your opinions at the end of your work are the same as your expectations at the beginning, you simply cannot firm up those opinions before you have a legally defensible basis for drawing them. A cross examining attorney who discovers that you reached a opinion first, and then justified it and are now testifying to it, may easily diminish the strength of your testimony or even have it stricken from the record.
Do not ignore available and relevant information. Your objectivity must contain whatever you discover when working toward your opinions. Otherwise, an attorney can attack your conclusions as false simply because you did not take known facts into account. Likewise, you may not leave out data that you believe will skew the results away from a conclusion that you want to have.
Be careful not to reverse an opinion expressed in previous publications or testimony just because your new attorney wants you to take this new position. If the facts do lead to a different conclusion, you should prepare explanations of the discrepancy between this new opinion and the one previously expressed.
You cannot have a fee schedule that is contingent on a productive outcome in the case. That establishes a bias in your opinions. Using contingent fees is enough to justify the exclusion of your testimony.
Honesty remains paramount. Even though you work with your retaining attorney, do not forget that the attorney is an advocate for the client. You are an objective expert whose job is to investigate and draw conclusions from the facts.
You serve the truth initial, and then your own sense of ethics and professionalism. Your objectivity and dedication to truthfulness will serve your client and attorney well and eventually help the court to reach the best verdict.
