9 November 2005
Continuing with the theme of quantitative social science expert witnesses in litigation introduced here and here, I shift gears to consider the experts' view of lawyers. Several expert witnesses with whom I have spoken confided that they often form low opinions of the lawyers who retain them. One common complaint is that the attorneys do not take the time to understand the guts of the issue experts were hired to examine. Another is that lawyers are uncommunicative and provide poor guidance as to their preferences for the testimony of experts.
Without question, poor lawyering is common, and some of what experts experience can be safely attributed to this source. But as was the case with lawyers' complaints about experts, experts' complaints about lawyers have their genesis partly in the structural rules that govern litigation. In most courts and jurisdictions, communications between a testifying expert and any other participant in the case (lawyer, fact witness, another expert) are discoverable. That means that, before trial, the other side is entitled to request, for example, copies of all email communications between lawyer and expert. In deposition, an expert may be questioned on telephone and other oral conversations with the retaining attorney. For this reason, good lawyers are careful about what they say to experts; they know that written or transcribed communications reach both parties to a case.
As is usually the situation, there are good reasons for this rule. An expert witness is one of the most dangerous creatures to enter a courtroom. By definition, he or she invariably knows more about the subject matter of the testimony than anyone else involved in the litigation, except perhaps the opposing expert. The judge and jury lack the knowledge and training to assess what the expert says. Thus, the law provides that experts must disclose anything that might form the basis of an expert's opinion, including communications with trial counsel (along with workpapers, references consulted, and other items).
Expert witness frustration aside, this discovery rule has other negative side effects; it affects not only how well lawyers prepare a case for trial, but also the treatment of the suit more generally. Parties and their attorneys need information to settle, and a lack of clear communication between lawyer and expert may cause the former to misjudge the settlement value of a case. Once again, we see how atypical Professor Kousser's experience as an expert was (see here), as lawsuits concerning the internal structure of a municipality or a state entity settle less often than, say, employment discrimination class actions.
In closing, a word to potential and actual social science expert witnesses: If you find yourself frustrated by a certain reticence or irrational exuberance on the part of the attorney retaining you, remember, there may be good reason for it.