The Paid Expert Witness Problem [UPDATED And CORRECTED]

“Check enclosed…”

When a lawyer’s expert witness testifies in a trial, the opposing counsel will always ask, “You’re being paid for your appearance today, isn’t the true?” The one time I was asked that question, I answered, “I’m being paid for my time, not my opinion.” Of course, many experts—yes, even ethics experts—are accepting payment for their opinion. The case of a Houston lawyer’s recent conduct, however, is the worst example of this reality crossing the ethics lines, hard.

Lawyer Mark Lanier had presented father-and-son orthopedic surgeons to the court and the jury as unpaid experts, emphasizing that they were testifying pro bono while the defendants’ experts had been bought. Naturally, this made them seem more credible to the jury. After the trial, however, and after the jury had awarded Lanier’s client  a handsome verdict and damages of $151 million, it was discovered that Lanier made a $10,000 charitable donation to the father’s favorite charity before trial, and sent “thank-you” checks totaling $65,000 to the surgeons after the trial, accompanied by notes of gratitude.

But they weren’t being paid for their testimony—at least, not when they were asked about it.

This representation was utter deceit where the father was concerned, for the old contribution dodge is giving something of value, and unless the surgeons were not told that they would be getting bonuses if the lawyer won the case—which I doubt—a flat-out lie for both surgeons, since the such “gifts’ are really payments in disguise. The New Orleans-based 5th U.S. Circuit Court of Appeals overturned the verdict, and ruled that the donation  and the post-trial payments “are individually troubling, collectively devastating.” The court wrote,  “Lanier’s failure to disclose the donation, and his repeated insistence that [one of the surgeons] had absolutely no pecuniary interest in testifying, were unequivocally deceptive.”

Lanier, who sounds like a lot of the trial lawyers I knew when I worked for their association, shrugged off the verdict by saying he thought he would get even more money for his clients in the new trial. He might, too, if he isn’t disbarred for lying as well as making an unethical arrangement with experts. Paying expert witnesses based on whether the client wins or not is generally condemned as unethical…that is, except for where I live. Virginia, Maryland and D.C. are anomalies, and contingent expert witness fees are allowed in D.C., while consulting expert witness can receive contingent fees in the two states. [NOTICE OF CORRECTION: The original post suggested that Virginia and Maryland also allowed contingent fees for expert witnesses. That was wrong, and I apologize for the error.]

It would be better, of course, if expert witnesses did testify for the public good. It is one of those jobs, like politics, where money can’t help but diminish trust, and sometimes integrity.

_______________________

Pointer: ABA Journal

 

21 Comments

Filed under Character, Health and Medicine, Law & Law Enforcement, Professions

21 responses to “The Paid Expert Witness Problem [UPDATED And CORRECTED]

  1. Imagine if crime lab scientists were awarded bonuses for convictions…

    • Michael R.

      You don’t want to look into that too closely. Fred Zain, Joyce Gilchrist, Annie Dookhan, The North Carolina Crime Lab 1987-2003, the Houston Crime Lab…In FL, NC, AL, KY, NJ, and VA, judges provide crime labs with pay “upon conviction” only. This isn’t their only source of money, but they do get paid extra if and only if the defendant is convicted.

      • Wow.

        Some states bend over backwards to make the O.J. Simpson defense a viable criminal defense again.

        • Michael R.

          The problem is that defenses aren’t really considered part of the modern judicial system. The prosecution, police, government experts, and crime labs are all on one side. The defendant and an out-of-the-loop attorney on the other. Defense attorneys really need to be able to call government experts on their behalf, order forensic analyses at government labs, and have the same access to the police and evidence that the prosecution does. I would even think that defense attorneys should be able to get search warrants and have police serve them with the attorney present to search for evidence.

  2. Glenn Logan

    It would be better, of course, if expert witnesses did testify for the public good. It is one of those jobs, like politics, where money can’t help but diminish trust, and sometimes integrity.

    I don’t think it has to be true, though. If people were just reimbursed their normal hourly wages plus actual expenses by the prosecution and/or defense (depending on who is employing them), I wouldn’t consider that a hit to their credibility, or my trust thereof, at all.

    Now, if they are paid professional witnesses, then yes, I’m going to consider that a hit to trustworthiness. Not a deal-breaker, but I’ll give the expert testimony less weight than someone who was willing to testify pro bono or just reimbursed for his actual lost wages and expenses to get to court and back.

    I think the idea of being paid based on winning or losing is unacceptable.

  3. dragin_dragon

    The solution to this is simple; expert witnesses should be appointed and paid by the court, for the edification of the court. They would testify FOR the court, with both council being given an opportunity to cross-examine. Neither council could present ‘rebuttal’ experts with the assumption being made that rebuttal ‘experts’ are going to testify the way that whom so ever paid them WANTS them to testify. However, the ALPA (American Lawyer Protection Association [or ABA]) will never go for it.

  4. Sue Dunim

    Having performed expert witness work myself, regardless of who pays, the expert’s duty is to the court, not either side.

    It is the expert’s duty to resist any pressure to spin the wording of conclusions to favour one side. Changing the conclusions themselves is, or should be, unthinkable.

    Without giving details, the last case I was involved in was in regards to a commercial dispute. There was significant evidence of fraud by the opposing party. Careful forensic examination showed no fraud involved, but gross and culpable incompetence instead. The bogus accounts on the system were artifacts used for debugging and testing, and hadn’t been removed before delivery.

    The Client accepted that his impressions of fraud were incorrect, so withdrew those allegations, and the opponent when presented before trial with my rather damning report settled without contesting the original amount claimed as compensation for the tort.

    Very hard work, forensic examination of computers. Every step has to be meticulously described and checked before it is taken. It would have been easier if I had access to some of the tools used by law enforcement that are guaranteed to preserve the data before examination begins.

  5. valkygrrl

    Jack, this is going around twitter, have you read it yet? It’s Roy Moore’s new lawsuit. https://drive.google.com/file/d/172ZYR4ti9h2lUtGYVp4W42p2PJL3PRLh/view

  6. tsmith

    Lanier’s misconduct is deplorable, unethical and (given his penchant for invoking the Lord) hypocritical. His clients in the present case and trial lawyers everywhere will bear the costs for his fraud.
    However, the writer is wrong about the following:
    “Paying expert witnesses based on whether the client wins or not is generally condemned as unethical…that is, except for where I live. Virginia, Maryland and D.C. are anomalies, and contingent expert witness fees are allowed here.”
    It is in fact prohibited “where you live” to pay experts based upon the outcome of the case.

    • Sorry, Trey, you are wrong. D.C. allows the payment of a “Success Fee.” As stated in LEO 449, Virginia’s position is that “It is not improper for a lawyer to enter into a contract with his client and a medical expert whereby the medical expert furnishes technical assistance on a contingent fee basis.” In Maryland, Maryland’s position regarding contingent fees for consulting experts appears to be covered by the case Schackow v. Medical-Legal Consulting Service, Inc. (1980), 46 Md. App. 179, 416 A.2d 1303, in which a medical consulting firm’s contingent fee was challenged by a non-paying client as against public policy. The court upheld the contract, noting that a contingent fee for the consultant was in the interest of public policy as “Clients who can afford attorneys only on a contingent fee basis cannot be expected to compensate a service… at a flat rate.” It also reiterated the ABA in noting that “nothing in the Code of Professional Responsibility prohibits a contingent fee contract with a consulting service so long as: 1) the service does not engage in the unauthorized practice of law; 2) the lawyer does not share legal fees with the service; and 3) the fee is not payable for the service’s testimony.”

      I am not some anonymous “author”: I’m Jack Marshall, and my name is right on the blog.

    • Trey: you are right, and I misstated the fact, regarding testifying witnesses in Md. and VA. They cannot receive contingent fees.In DC, they can, under certain restrictions. However, it IS permitted to pay consulting experts contingent fees in all three jurisdictions.

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