Experts and the evidence or testimony they provide are used in most cases that go to trial today. The retention of a consulting or testifying expert and the presentation of expert evidence or witness testimony at trial brings with it a host of ethical issues that many lawyers need to consider, but unfortunately often fail to do so.
Legal Executive Institute recently spoke to Irene Savanis Fiorentinos, Of Counsel, and William F. Dolan, Partner, both of Jones Day, about lawyers’ ethical duties under current rules and what it means when retaining an expert; the standards of care associated with expert selection; and the identification and avoidance of conflicts when hiring experts.
On Feb. 23, the pair will be hosting a live webcast, entitled “Retaining and Using Consulting and Testifying Experts: Ethical Considerations for Attorneys” where they will analyze the relevant rules of professionalism and conflicts, and discuss ethical issues and dilemmas that attorneys face when navigating the selection and retention of experts.
Legal Executive Institute: What are the main issues involved in employing an expert in court?
Irene Savanis Fiorentinos: There are a number of topics, including conflicts. What conflicts may an expert have by virtue of who they or whom their company has represented in the past? Sometimes, it’s what issues they’ve testified about. There also needs to be an analysis of prior relationships that particular lawyers have had with particular experts. For some fields, the expert choices are very broad, very diverse, and you can easily find many choices before you make your selection. But for some situations, it’s really a particular handful of experts who get hired over and over again to represent a particular side. It may be fine, because they have that expertise, but there needs to be a discussion built around that as a starting point when you are looking at experts.
LEI: It seems to be incumbent on the attorneys to make sure these conflicts don’t become an issue in the case — is that the right way to look at it?
William Dolan: What you say is 100% correct. There is a growing concern from a legal and ethical perspective, that courts are going to impose on lawyers an increasingly stringent burden with respect to the selection of experts. It includes, for example, not only understanding the subject matter of the expert’s testimony — you don’t have to be an expert yourself — but making sure that the expert is actually competent about what he or she is going to testify about.
LEI: Are these issues coming to the forefront more so now?
Dolan: I think the first point is that experts are now ubiquitous. When I was a young attorney involved in a breach of contract case, you wouldn’t necessarily have an expert on anything except damages. Nowadays a very large percentage of all cases that go to trial involve some form of expert testimony. So when you have experts becoming ubiquitous, the problems about potential conflicts get exacerbated.
Fiorentinos: That’s absolutely true. Remember that now we ourselves can do a lot of searching on a particular expert as well as experts on opposing side. We always expect the expert to be forthcoming with where they have testified before but now it is even more prevalent in the universe as to where that expert has testified before and what they have said.
LEI: What do you hope someone attending this webinar leaves with?
Dolan: They will come away with an increased sense of the lawyer’s specific duty of care with respect to the selection and retention of an expert witness. There is a gatekeeping issue that applies to lawyers when they hire an expert, and you have to be very conscious of the question of conflicts as it relates to experts.
Because of the complex divide between the way that lawyers conceptualize their ethical duties and the way that experts conceptualize their ethical duties, you have to be a little bit more vigorous in your investigation. You can’t just rely on the expert saying, “Gosh, I’ve got no conflict.” The expert’s concept of conflict is not necessarily consonant with that of a court.
The third general concept that I’d like people to walk away from this is that all of these things are better managed more effectively through the use of careful retention agreements and proper care by the attorneys going into these issues in the first instance.
Fiorentinos: Retention agreements are key. Who are we retaining? Why are we retaining them? Who is actually going to be the one testifying? I think lawyers need to think these questions through and ask what potential issues they have by choosing this particular person and especially the larger entity this person may represent.
We hope this webinar makes everyone think about this in advance — and I think the engagement letter can put that concept in there — that you’re not just hiring a firm, you are hiring a person, and all those potential conflicts need to be checked.