Tuesday, February 19, 2008
University of Houston Law Center Professor Joseph Sanders' contribution to the Evidence and Ethics Symposium is his article, Expert Witness Ethics. In the article, Sanders focuses on what ethical standards apply to expert witnesses and "what steps we should take to encourage more ethical behavior" by expert witnesses. In Part I, he discusses "the nature of the expert's ethical obligation and impediments to fulfilling that obligation." His starting point is the central proposition that, as reflected in Federal Rule of Evidence 102, "the primary purpose of a trial is to ascertain the truth." From this proposition, he advocates use of the epistemolical approach of looking at the interplay among "belief, truth, and justification" in determining when an expert can testify. This approach leads him to argue that "[e]xpert ethical behavior should be judged by the standards of the discipline of the expert."
He then contends that this result is best achieved by applying "Kumho Tire's requirement that in order to be admissible the expert must employ the 'same intellectual rigor' with respect to his courtroom testimony that he would with respect to his everyday work." Sanders acknowledges that two primary concerns have been raised to this "same intellectucal rigor" test: (1) there may be areas for which the profession's acceptable levels of justification are so low that one might argue their standards are always insufficient for legal purposes; and (2) some professional standards may be too stringent, preventing the admission of relevant expert evidence. Nontheless, Sanders presents persuasive rebuttals as to why this test is most approriate.
In Part II, Sanders "discusses ways we might enforce expert ethical standards through the use of sanctions." In this part, Sanders considers several potential types of sanctions: (1) sanctions by the parties to the litigation; (2) sanctions by (and of) lawyers; (3) sanctions by professional organizations; (4) sanctions by judges, and (5) sanctions by juries. This analysis leads Sanders to conclude that while some sanctions (particularly published admissibility rulings "outing" experts and professional organization sanctions) can play a role in controlling unethical behavior, enforcement problems and countervailing pressures work to minimize their effectiveness as they are applied in only the most egregious cases.
Thus, in Part III, Sanders considers how systemic changes might control expert (mis)behavior. The most fascinating suggestion he raises is based upon a "recent reform in New South Wales" in Australia. Sanders notes that a new Civil Procedure Act in Australia, adopted in 2005, calls for, inter alia, "concurrent evidence" sessions. According to Sanders,
"The concurrent evidence procedure is employed in circumstances where the party experts disagree about some relevant fact. During concurrent evidence sessions, the experts, their attorneys, and the judge meet, freed from the constraint of having to formally respond to lawyer questions. Each expert is given an opportunity to make a statement, to comment on the evidence of other experts, and to ask questions of other experts. At the conclusion of this process, the judge may ask questions and then lawyers are permitted to pose questions that more nearly resemble those that would be asked in traditional adversarial proceedings. Judges report that the experts and their professional organizations approve of this procedure. According to Dr. Gary Edmond, judges attribute the following benefits to the concurrent evidence procedure: (1) it reduces partisanship (adversarial bias) and distortion; (2) it embodies scientific values and facilitates peer review; (3) it enhances communication, comprehension, and analysis; (4) it decreases lawyer control; and (5) it reduces time and costs and narrows the real issues."
Sanders cautions that implementation of this "concurrent evidence" procedure would require wholesale changes in American evidence law, but he also notes that pieces of this procedure could be readily implemented into the current American system. This approach seems to me to be a great solution to a problem that is increasingly plaguing courts, and I hope that those in the legal community pay attention to his recommendations when they next decide to amend the rules on expert evidence.