"Consulting experts" versus "testifying experts," and the differences between the ways lawyers and journalists use experts generally

On his radio show Thursday afternoon, Hugh Hewitt first asked whether I have much experience as a trial lawyer in dealing with expert witnesses, and I confirmed that I do indeed deal with them in my practice on an everyday basis.  Then Hugh asked me a hypothetical question:  If I were defending CBS News in a multimillion dollar trial, would I let the case go to the jury based on the collection of experts CBS News has relied upon in its so-called authentication of the forged Killian memos.  My answer wasn't a particularly good one — perhaps surprisingly, I hadn't thought of the question before in precisely those terms because of the differences in the ways trial lawyers and journalists regularly rely upon experts.

But as so often happens in my blogging, this question is one I've been mulling over for a while, and that has now led me to one of my multipart rambling dissertations as a crusty old trial lawyer.

I. Expert witnesses versus lay witnesses

The Federal Rules of Evidence (and most states' parallel rules for use in the state-court system) distinguish sharply between expert witnesses and so-called "lay witnesses."  Rule 701 of the Federal Rules of Evidence sharply restricts the ability of lay witnesses to offer testimony that consists of the witness' opinions or inferences:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702 in turn provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

To give some concrete examples of how this pair of rules actually works in a trial:  Suppose my client Mr. Jones, a ditch-digger by trade, claims to have been permanently disabled by a violent reaction to a prescription drug.  When I put Mr. Jones on the witness stand, he can testify based on first-hand knowledge about a wide range of important factual matters — for instance, his own educational, vocational, and economic history; what prompted him to consult his doctor; when he started taking the drug; and what impairments or symptoms he began to notice thereafter and continues to observe.  He can testify that for the five years immediately before he first took the drug, he'd had a gross yearly job income of, say, $35,000, and that he has had no income at all since he took the drug.  He can testify, too, on some matters that strictly speaking are not objective issues of fact — for example, how his quality of life seems to him to have changed; how his family life has been disrupted; how he feels about no longer being his family's breadwinner; what tasks he no longer finds himself capable of doing; how severe the physical pain is from the multiple daily seizures he has continued to suffer; and so forth.

But there will be important parts of Mr. Jones' overall case that I cannot prove up through his testimony as a layman.  I cannot, for example, ask him to render a medical diagnosis regarding his condition when he sought treatment (although I might, through a hearsay rule exception, be permitted to adduce his testimony as to what he was told by his examining and treating physicians when he did so).  I cannot ask him to render an opinion as to whether in fact the prescription drug (rather than, say, some other event or malady) caused his current disability, or how it did so, or how long his disability is likely to last, or whether it's likely to become curable in the future.  I cannot ask him to render opinions on the likely rate of future inflation or interest-rate returns on a conservatively invested lump sum of money, or what discount rate should fairly be used to discount to present value the stream of earnings he might have expected to receive over his projected working lifetime but for his disability.  (Oddly enough, though, with respect to damages calculations, I can take the basic data he's given me and, during final argument, do some blackboard calculations to suggest to a jury of laymen how they themselves might go about making appropriate "common-sense calculations" to determine the present value, if paid now in cash, of the stream of future earnings that my client has lost the prospect of receiving.)  No, on all these issues, detailed analysis and proof will depend on opinion testimony that in turn is based upon "scientific, technical, or other specialized knowledge," and I can only adduce that testimony from the mouths of "experts" whose qualifications and expertise I've first demonstrated to the court's satisfaction. 

And even once I've met the threshold standard of proving a given expert's qualifications — that a physician, for example, has a medical degree and license — my opponent will be free to attack not only my expert witnesses' opinions, but the depth of their qualifications to render them; and typically my opposing counsel will call his own competing expert witnesses, prove up their qualifications to give opinion testimony, and offer their own competing theories, opinions, and conclusions.  It is left to the "factfinder" — the jury if there is one, or the judge in a nonjury bench trial — to sort through the conflicting opinions; assess the respective experts' credentials, expertise, and credibility;  and determine whose opinions to accept and whose to reject, in whole or in part. 

Thus does the dance of experts play out in any civil trial.

II. Pretrial discovery of experts

The anticipation of how that dance will likely play out in a trial, however, in turn guides the pretrial preparation and discovery phase for both sides in a lawsuit.  By rule and/or pretrial order, some months before the trial, I will have had to have "designated" the experts whom I've proposed to call at trial to my opposing counsel, and to have provided him with not only their names, but their credentials, their written reports of their opinions and conclusions, and all of the data they've reviewed and considered in reaching them. 

My opponent, after reviewing that information, will almost certainly have taken a pretrial oral deposition of all of my significant expert witnesses to probe those subjects.  Every communication I've had with my "testifying experts" will have been subject to his examination — and you may be sure that he'll have asked, for example, how much my expert is being paid; how much of his time is devoted to serving as an expert witness in legal matters versus plying his profession directly; whether I've improperly suggested conclusions or withheld key information from my expert; whether my expert has rendered contrary or inconsistent opinions in other settings; how strong my expert's credentials really are; how carefully he's actually reviewed the data in forming his opinions; and so forth.  And when my opponent has selected and designated his own competing "testifying experts" to refute mine, he'll have had to have made the same disclosures and have given me the same opportunities to probe their opinions.

III. Testifying experts versus consulting experts

But even before the pretrial dance of competing "testifying experts," civil litigation often involves another type of expert altogether — the "consulting expert."  By definition, a consulting expert is one retained in secret — even his identity, and the very fact that he's been retained, is something I dare not and need not disclose.  I may have hired him, in fact, to help me evaluate a prospective case before I've even made a final decision whether to undertake it.  And so long as I keep his identity secret, and his work and opinions carefully segregated from my "testifying experts," my opponent will never learn of his existence.

Some of the expert witnesses upon whom I may be obliged to rely may be ineligible for "consulting expert" status to begin with.  The physicians who've diagnosed and treated my client, for example, are bound to become known to my opposing counsel, and I'm bound to rely upon them as witnesses to testify as to the facts they observed and the actions they performed — which inevitably will draw into question the opinions and conclusions they reached during that process.  And it's also quite common for an "outside expert" — one with no prior factual connection to the case — to be retained initially by counsel as a "consulting expert," and only after counsel has concluded (using his judgment as an advocate) that it would be beneficial to his presentation of the case, disclosed to the other side and thereby converted into a "testifying expert."

Superficially, it may seem as though the practice of allowing the shielding of the identities and opinions of pure "consulting experts" would be antithetical to the process of justice.  But as it has developed, the law has recognized the overall benefits of allowing private and nondiscoverable consultations.  If, for example, I knew that every expert I ever consulted would become known to my opposing counsel — and that I might thereafter be "stuck" with an expert's unfavorable opinion — the natural result would be that I'd only consult with pliable and reliable experts whose opinions I could confidently predict in advance to be favorable to my client. 

Just as I must be able to consult with my client under the shield of attorney-client privilege to learn about unfavorable facts that I need to assess in order to perform my role as his counselor — a role that is and should be distinct from my performance before the outside world as his advocate — so too in that counselor's role I must be able to gather opinions that aren't sycophantic in order to assess the strengths of the likely expert testimony the jury will ultimately hear from both sides. 

Moreover, it promotes efficiency if I'm free to "sound out" various potential experts as pure "consulting experts" without thereby becoming stuck with them as testifying witnesses.  It's not uncommon to approach and even retain an expert with the highest hopes and expectations that he'll make the switch from "consulting" to "testifying expert," but then to find out that he's actually less qualified to render opinions than I'd first expected.  Perhaps I've first consulted a neurosurgeon to review my client Mr. Jones' medical records, and then learned from him that Mr. Jones' maladies really weren't by their nature subject to surgical treatment, and that instead I ought to seek opinions from neurologists and epidemiologists.  Or perhaps I've discovered that someone I retained as a consulting expert — with the expectation of eventually designating and disclosing him as a testifying expert — is well qualified, even brilliant, but he's got a troublesome lapse in his licensure from that license revocation proceeding he didn't think to list on his curriculum vitae, or he's simply an uncharismatic and inarticulate witness.  Why should my client's case be burdened with the embarrassment of calling these inappropriate experts?  That would promote confusion and needless expense, not truth-seeking.

The premise is that through the adversary system — in which my opposing counsel has these same opportunities to rely upon attorney-client privilege and the privilege against disclosing the identities and opinions of pure "consulting experts" — more cases will be likely to settle on a reasonable basis without a trial, and the cases that do go to trial will permit the factfinder to reach the fairest possible resolution of the disputed issues based upon two competing advocates' strongest possible presentations of their respective cases and attacks on each other's presentations.

IV. Journalists' use of experts

My job as a trial lawyer is to promote my client's interests, zealously but within the bounds of the law and legal ethics.  While I need to have a good appreciation of opposing views and the weaknesses of my own client's positions to perform my role as confidential counselor, I have no obligation to score points for my client's opponent — he has his own advocate to do that for him.

At least in theory, however, journalists, in contrast to trial lawyers, are not creatures of an adversary system.  While they have business competitors and perform in a marketplace of competing ideas and opinions, journalists have as their "client" the "public interest" and "the truth."  And that has profound implications for the differences in how journalists and lawyers rely upon and use experts.

Like me, a journalist may have need of an expert witness to analyze technical or scientific issues, render opinions on them, and digest their opinions down into bite-sized chunks that can be followed and assessed by the audience — jurors for me, the public for journalists.  Just as I might hire a forensic document examiner to assist me in determining the authenticity of a document for, say, a will contest case, Dan Rather may have need of a forensic document examiner to assist him in determining the authenticity of a memo produced by a source who claims that the memo bears upon President Bush's military service.

To a limited extent, I have no problem with journalists relying on their own sort of "consulting expert."  Dan Rather should be free to consult with, say, a typewriter repairman to find out what his experience and expertise may offer.  And I have no problem with Dan Rather deciding, after thorough examination, that the typewriter repairman wasn't really the right kind of expert he needed after all, and therefore leaving on the editing room floor all the footage of his interview with the typewriter repairman when he finally airs his broadcast. 

But as I understand journalistic ethics, what a journalist is not entitled to do is to simply "deep six" — to not only ignore, but actively hide or misrepresent — the opinions of experts with whom he's consulted who do have the relevant credentials and expertise, but whose opinions and conclusions don't fit with the premise of the journalist's story.

If Dan Rather and CBS News concluded, for example (as seems to be the case), that Marcel Matley, Linda James, Emily Will, and James J. Pierce were all competent handwriting experts, journalistic ethics do not permit them to simply ignore the objections raised by Ms. Will and Ms. James to the signatures on the Killian documents while only broadcasting, without reservation, the opinions of Mr. Matley and Mr. Pierce that the signatures were genuine.  If Ms. Will told CBS News that she had concerns about the documents' typefaces and format, and that they ought to consult someone with deeper credentials and expertise on those subjects rather than just the handwriting, then journalistic ethics would not permit CBS News to simply ignore that advice and proceed along as if it had actually consulted with experts who have the proper expertise.

Precisely because journalists must make their editorial judgments in a hurry — without the elaborate procedures of civil litigation and the checks and balances built into the adversary system — journalistic ethics placed a burden on Mr. Rather and CBS News that I, as an advocate, don't share:  The burden of being balanced and fair in their presentation.

But it's now quite obvious that CBS News and Mr. Rather violated their ethical obligations as journalists, and instead behaved as if they were advocates for a particular viewpoint, in this case a viewpoint critical of President Bush's service record.  They took it upon themselves to ignore controverting opinions and warnings from the very experts whom they had chosen to consult.  They treated those experts as if they were "consulting experts" whose existence and opinions they were entitled to hide from the public, and indeed at least for a time actively tried to conceal those experts' very existence.  They instructed Mr. Matley not to give interviews; they've in effect called Ms. Will and Ms. James liars; they've even concealed the fact that Mr. Matley and Mr. Pierce have given carefully limited opinions, opining only as to some documents and then only as to their signatures, not their typefaces and other characteristics.  Indeed, my friend and fellow lawyer-blogger AllahPundit has persuasively argued that CBS News appears to have engaged in authentication shopping, selectively revealing different document to different experts in hopes of finding a combination that would fit the theme they were trying to promote.

And in so doing, CBS News and Mr. Rather not only violated their ethical obligations — they also became willing accomplices to a forger.  Whether motivated by a desire to cover up their own unethical and incompetent journalism, or by a more repugnant desire to serve a partisan political goal, their conduct has been shameful and indefensible.   In either event, they clearly long ago ceased being objective journalists and became instead advocates — advocates unbound and unchecked by procedural rules, legal processes, ethical considerations or, apparently, even conscience.

Such behavior should have career-ending consequences.