Advocacy vs. Neutrality: Overcoming the Expert's Dilemma

Consider the following scenario: A forensic accountant is hired by the plaintiff's counsel to determine economic damages in a financial dispute. The expert meets with the attorney and client to discuss the key elements of the case. They talk about what's expected, as well as the expert's background, credentials and any potential conflicts of interest. Information about the case is provided, along with documents, time frames and other administrative requirements.

Ethics: The Fundamentals

Financial expert witnesses comply with ethical principles established by various professional organizations. Here are some basic principles that all expert witnesses should comply with, regardless of the professional organizations they belong to:

Engagement. Experts should decline involvement in any case when they're asked to assume invalid representations of fact or alter their methodologies without foundation or compelling analytical reason.

Compensation. Expert witnesses shouldn't accept contingency fee arrangements or fee amounts associated with the size of a court award or out-of-court settlement.

Diligence. Experts should employ generally accepted and theoretically sound economic methodologies based on reliable economic data. They should attempt to provide accurate, fair and reasonable expert opinions. However, experts don't generally verify the accuracy or completeness of the case-specific information that has been provided.

Disclosure. Experts should be ready to provide sufficient detail to allow replication of all numerical calculations, with reasonable effort, by other competent experts, and be prepared to provide sufficient disclosure of sources of information and assumptions underlying their opinions to make them understandable to others.

Consistency. The basic assumptions, sources, and methods shouldn't change regardless of whether the party who engages the expert is the plaintiff or defendant. There should be no change in methodology for purposes of favoring any party's claim. This requirement isn't meant to preclude methodological changes as new knowledge evolves. It also isn't meant to preclude performing requested calculations based on a hypothetical, as long as its hypothetical nature is clearly disclosed in the expert's report and testimony.

Knowledge. Experts should strive to maintain a current knowledge base of their discipline. This includes staying current on the continuing professional education requirements of any professional organizations to which they belong.

In these types of situations, it's critical that the team, including the attorney, client and expert, communicate in an open forum on key positions, facts and damage theories. All viewpoints should be evaluated and respected. By doing so early on, the expert is better able to maintain a sense of objectivity. This leads to more effective testimony and less vulnerability to attack from the opposing counsel, who will likely try to impeach the expert's objectivity and independence.

Here are some frequently asked questions about expert neutrality:

What's the Difference Between Being an Advocate and Being Neutral?

Advocacy can be defined as, "The act of pleading for, supporting, or recommending." If an expert testifies about the credibility of the damage claims put forth by the plaintiff, is the expert an advocate? Ideally, the expert should reach his or her own conclusion based on an independent analysis of the data, rather than simply corroborating the plaintiff's opinion.

Neutrality means not being aligned with or supporting any side or position in a controversy. This can be challenging when an expert is hired by one party in a dispute. Obviously, it's more easily accomplished when the expert is appointed by a court or jointly retained by all parties in a dispute to evaluate the data and reach conclusions. In these cases, experts present both sides in order to foster a settlement or help a judge in rendering decisions.

In litigation, neutrality shouldn't depend on which party retained the expert, rather it should be more of a mindset. It involves the expert maintaining a professional distance from the emotional aspects of the client's case and the desire of counsel to win. Of course, this doesn't mean the expert becomes belligerent or difficult, but he or she should insist on airing out alternate views to uncover provable facts and irrefutable documentary evidence. In this capacity, the expert provides an invaluable service by thinking through the complex details. Attorneys and clients are best served when an expert is passionate about his or her testimony and written reports and doesn't feel pressured.

Can the Lines of Advocacy and Neutrality Become Blurred?

The expert in litigation is often asked to assist counsel in preparing for a deposition of a witness on the other side. In this role, the expert reviews the case information and composes draft questions. This work can lead to a planning meeting with the attorney and perhaps the client. At the meeting, the expert becomes exposed to the thoughts and strategies of the attorneys and the concerns of the client. At this point, it's incumbent on the expert to point out any flaws in the logic surrounding these views. An open exchange should be encouraged at this critical juncture, when the role of the expert becomes evident.

What Happens If the Expert Disagrees with the Counsel or Client?

Sometimes, disagreements arise between members of the litigation team. They can stem from disputes over strategy or the completeness of data.

For example, an expert may not feel that the evidence overwhelmingly supports the client's position. It's essential that the expert explain the basis for his or her position and allow time for discussion and debate. Perhaps more documentation can be located to buttress an argument.

However, after a period of time, if the expert still disagrees with the client's position, the attorney may decide not to call the individual as a witness. In some cases, this can mean that the client's case is weak or based on circumstantial evidence.

The unwillingness of an expert to testify can be a signal to counsel that settlement is in the client's best interest.

Why Are Independence and Objectivity So Critical?

Unlike lawyers, experts owe no specific allegiance to clients. While a lawyer is an advocate for his client, an expert witness is supposed to be a source of knowledge and opinions that will aid the judge or jury.

Therefore, slanted opinions that aren't based on empirical data and sound theory are likely to be attacked on cross-examination and, potentially, dismissed by the court. Sometimes an expert is rejected prior to trial through a Daubert challenge. In such a challenge, the specific background of the individual in every intended area of testimony becomes subject to argument, making it much more difficult to proffer experts.

Testimony and written reports offer opinions and projections that should be as free of bias as possible. Soundly written reports should include references to published materials from authoritative sources. Novel opinions are difficult to introduce unless the expert possesses such lofty credentials that he or she recognized as an undisputed authority. Even then, it's essential to explain why more traditional theories aren't as good as the novel argument. Since both sides may retain their own experts, a battle could take place during trial.

Beware of "Hired Guns"

The mindset of an experienced expert witness is one of professionalism and balance. Experts must guard their personal reputations for independence and objectivity, even if it means walking away from some cases or challenging the attorney's and client's positions.