Some time ago, I had the opportunity to talk informally with a sitting Federal judge. I asked him why the courts didn’t hire the experts instead of the litigants. This would make the expert responsible to the court and would result in fuller and less biased opinions. His response was, "because we use the adversarial system." My immediate thought, left unsaid, was "but aren’t we seeking the truth?"
Most experts will agree that while they are required to tell the truth, because it is an adversarial system, the truth they speak will be those opinions most favorable to their client. It is up to the other side to ask questions that may bring out opinions less favorable to the expert’s client.
Two items arrived on my desk this last week that address these issues, at least in part. The first was an article appearing in The Washington Times about legal-scientific conflicts. Justice Stephen G. Breyer, U. S Supreme Court, in addressing the American Association for the Advancement of Science said that scientists who testify in court or give expert opinions are going to have to accept that untrained judges and juries have the final say on their findings. "Any effort to bring better science into the courtroom must respect the jury’s constitutional specified role." He stated that a possible solution to scientific "truth" being lost in courtroom justice is a new "pilot project" in which judges draw on an expert panel set up by a scientific organization.
While Justice Breyer was only addressing "scientific" testimony such as medical issues, the same concept could be used for other expert disciplines.
The January issue of The Expert & The Law, published by the National Forensic Center, had an article "Clarification of the Roles, A Proposal for the Expert Guidelines." It stated in part, "Presently many experts find it difficult to balance their conflicting responsibilities to the attorney and to the court. Guidelines would make a distinction between these two roles as follows -,
In regard to #1 above, experts respond to questions asked of them in court. Thus they do not have the authority to volunteer or control information while giving evidence. Their testimony favors the side presenting them because questions relating to their opinions will be phrased so as to minimize adverse opinions. Thus the expert remains in an adversarial setting when retained by one of the parties. However, if retained by the court, better-balanced opinions would be presented.
With regard to #2 above, my experience is mostly in federal courts. Reports are part of the discovery process and are not submitted to the court except during testimony for impeachment purposes. Court rules do not suggest that they be submitted to the court.
The disclosure in the report of discussions between the attorney for whom he or she is working and the expert as proposed in #3 above is way too broad. Certainly if there are parts of the report which are the work product of the attorney, I would agree. However, much of the discussion that I have experienced with the attorney relates to either typographical errors or requests for me to address issues which I have not addressed. These discussions have no effect on the validity of the report and therefore don't belong in the report.
The last of the proposals, #4 above, requires the expert to disclose everything he has an opinion on relevant to the case. This is contrary to the opinion of the federal judge who reminded me that this was an adversarial system of justice. While the expert cannot assume an adversarial position, our system of justice uses him in that setting.
Needless to say, the role of the expert has been changing over the years. The new federal rules have allowed more people to qualify as an expert while the Supreme Court’s opinion in Daubert has limited certain scientific expert evidence. Foremost, and unchanged, is that the expert shall tell the truth as he or she believes it. But the degree to which they should bare their sole continues to be a hot subject of discussion.
Incidentally, those of you who wish to comment on the proposed guidelines for experts set forth above should write to the National Forensic Center, 17 Temple Terrace, Lawrenceville, NJ 08648.
Home ! Search Page ! Master index ! Table of Contents for This Issue