Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Monday, December 2, 2013

Use of Wikipedia in expert opinions - follow-up

I recently posted on a controversy involving the use of language from Wikipedia in expert opinions, and want to follow up on one point that makes the case for disqualifying Prof. Feinerman (or any expert in a similar situation) even weaker. The Bloomberg news report said that what was involved was a "report summarizing his proposed testimony" (emphasis added). I now understand the significance of this. The document Prof. Feinerman submitted was not his testimony; it was a disclosure submitted to the defense that summarized what he was going to say on direct examination during the trial. If I understand matters correctly, that document would not even be read by the fact-finder; it is solely to put the defense on notice as to what the expert intends to say. As such, the source of the words in that document is completely unimportant, and it is missing the point to apply academic standards to such a document. I have already explained in my previous post why it misses the point to apply academic standards to expert testimony, and now it appears we are talking about a document that is itself once removed from expert testimony. It is in effect notes for an oral presentation of expert testimony.

Look at it this way: suppose I am an expert astronomer called upon to present oral testimony about the structure of the solar system. I tend to ramble, so I want to make sure I cover all the important facts, but concisely. I read the Wikipedia entry on the solar system and think, "Hey, this is pretty good. No mistakes, and it says what I want to say quite well." I print out the Wikipedia entry and send a copy to the other side so they'll have advance notice of the content of my testimony. I also take it with me to my oral testimony. I might or might not look at it as I testify to remind me what needs to be said. My oral testimony does not, of course, duplicate the Wikipedia entry word for word, but nobody who had read the Wikipedia entry would be taken by surprise by anything I said. Can there possibly be anything improper about any of this? What unfairness is perpetrated by my failing to note that the source of the words in the document I sent to the other side was Wikipedia? Those words weren't even my actual testimony. The more I think about it, the more it all seems just a silly tempest in a teapot.

As with my first post, I have not discussed this matter with Prof. Feinerman; my view here is based on my understanding of the facts, which may be incorrect.

Commentary | Permalink


I tend to agree with Professor Clarke.

Posted by: Frankie Fook-lun Leung | Dec 3, 2013 11:43:09 AM

I testified quite regularly in litigation as well as being a litigation attorney in three continents over a span of 40 more years. An expert witness in a common law jurisdictional litigation is a hired gun. Such an expert assumes an advocacy function. Hence his testimony will be challenged and he or she be cross-examined by the adversary. That kind of challenge is entirely different from an academic discourse.

Posted by: Frankie Fook-lun Leung | Dec 3, 2013 11:50:11 AM

"Such an expert assumes an advocacy function." I completely disagree, and my view in no way rests on that proposition. It's the expert's job to say what he genuinely believes, and in fact he has to swear that that's what he's doing. To say anything else is to commit perjury.

Posted by: Don Clarke | Dec 3, 2013 2:21:43 PM

It is not a point of not telling the truth or committing perjury, it is the role of an advocate. I have been a fell-time practitioner practising in four jurisidictions in over thirty years. The role of an advocate does not conflict with being truthful. You are asked to given a learned opinion and not testifying in a car accident lawsuit.

Posted by: Frankie Fook-lunLeung | Jan 19, 2014 2:01:17 PM

I agree with what you say about what an advocate does, but an expert is precisely NOT supposed to be an advocate. If you are ever called on to be an expert witness and the other side unearths this statement of yours, I guarantee it will not look good.

Posted by: Don Clarke | Jan 19, 2014 8:28:45 PM

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