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