The Lawyer's Duties of Advocacy and Candor in Tension - Hawkins ...

Defense Ethics and ProfessionalismWhen Experts LieThe Lawyer’s Duties of Advocacyand Candor in TensionBy Edward M. Slaughter and Lauren E. WoodThough lawyers can never knowingly offer false testimonythrough a witness, expert witnesses presentspecial problems. First, challenging the favorable opinionsof a witness that a lawyer has hired to advance theinterests of his or her client is in tension with that lawyer’sduty to act as a zealous advocate. Second, a lawyeris often ill-equipped to determine whether an expertopinion is objectively true or false. Evaluating the truthfulnessof opinions, which are subjective by definition,is an epistemological task that would turn Kant to thebottle. Moreover, experts are retained because they havespecial knowledge beyond that of a lay person or lawyer.Determining whether a witness with advanced trainingand knowledge subjectively believes the opinions thathe or she offers, while protecting our clients’ interests,is an extraordinary responsibility. Yet that is preciselywhat we must do.Lawyers have an ethical obligation to keep junk scienceout of the courtroom. Commenting on meetingthis obligation, Chief Judge Jack B. Weinstein wrote,“When all else fails—when neither improved pretrialprocedures nor strengthened ethical codes succeed interminating litigation in which one party’s position isgrounded solely on suspicious expert testimony—it maybe the task of the judge to do what the adversarial processand professional ethics have failed to do.” See JackB. Weinstein, Improving Expert Testimony, 20 U. Rich.L. Rev. 473, 483 (1986). Judge Weinstein’s point is thatattorneys have the first responsibility for keeping junkscience out of the courtroom.When does an expert’s opinion qualify as a lie underModel Rule of Professional Conduct 3.3, which governs anattorney’s duty of candor? The adversarial process oftencreates incentives for paid expert witnesses to exaggerateor lie that are rarely found with disinterested witnesses.Still, there is no authority conclusively establishing theboundaries of expert opinion. See John L. Watts, To TellThe Truth: A Qui Tam Action for Perjury in a Civil Proceedingis Necessary to Protect the Intergrity of the JudicialSystem, 79 Temp. L. Rev. 773, 790 (2006). Identifying afalse expert opinion is difficult because opinions encompassmore than objective truth. An opinion is definedas “a view or judgment not necessarily based on fact orknowledge.” Oxford English Dictionary. 2nd ed. New York:Oxford University Press (1989). Some opinion testimonymay be false. Other opinion testimony represents novelbeliefs subject to contentious disagreement but genuinelyheld by their proponent. The ethical challenge is to suppressthe former without chilling the rights of counseland their witnesses to present the latter.Rule 3.3 instructs that a lawyer shall not knowinglyoffer false evidence. If a lawyer discovers that his or herwitness offered false material evidence, reasonable remedialmeasures must be taken, potentially including disclosureto the tribunal. But in the event that an attorneyfails to disclose, how can this rule be enforced? Some circumstancespermit courts to infer an attorney’s knowledgeof perjury. The most obvious inference is madewhen an expert witness has offered testimony in a previouscase that contradicts testimony in a present case. See,e.g., In the Matter of Peasley, 90 P.3d 764 (Ariz. 2004). Inthis situation, an attorney is presumed to know that oneor the other of the expert’s statements was false, even ifhe or she cannot identify which is false. Id. at 779; Rule3.3, comment 8.The Model Rules does not require a lawyer to discardall expert testimony that he or she finds suspect. UnderRule 3.3, a lawyer may still present expert opinions whenhe or she is uncertain about their validity, but uncertaintymust be both reasonable and genuine. GeoffreyC. Hazard, Jr., and W. William Hodes, The Law of Lawyering:A Handbook on the Model Rules of ProfessionalConduct §3.3:401 (2d ed. 1992 Supp.) While some commentatorsargue that it is not the attorney’s role to test hisor her own expert’s opinions, others believe that an attorneyshould take on a gate-keeping function, weeding outimproper testimony. Robert Haun, Truth for Hire With aPh.D.: The Abuse of Expert Witnesses, 8 Macalester J.Phil. (1998). Acting reasonably when uncertain aboutn Edward M. Slaughter is partner-in-charge of the Dallas office of Hawkins, Parnell& Thackston LLP. He serves as trial counsel and national coordinating counsel fordefendants in business and product liability litigation across the country. Mr. Slaughteris a member of DRI’s Lawyers’ Professionalism and Ethics Committee. LaurenE. Wood is an associate in the Dallas law firm of Hawkins, Parnell & Thackston LLP. the validity of expert testimony requires that a lawyerHer practice focuses on mass tort defense in Texas and California. Ethics, continued on page 7168 n For The Defense n July 2009© 2009 DRI. All rights reserved.

Ethics, from page 68seriously evaluate the expert and his or heropinions before offering them.Former U.S. Attorney General DickThornburgh, commenting on our ethicalobligations, said, “[i]t is unethical lawyerswho are largely to blame for junk science.”Dick Thornburgh, Junk Science—The Lawyer’sEthical Responsibilities, 25 FordhamUrb. L.J. 449 and 462 (1998). He suggestedthat lawyers have an ethical obligation totest the opinions of their own experts andoffer only those that are supportable. Heconcluded that attorneys who present junkscience testimony in bad faith should faceRule 11 sanctions. Id. at 467. There is a distinctionbetween opinions that cannot besupported to the satisfaction of a court andoutright lies offered by paid witnesses. Asstewards of the law and our profession, weshould endeavor to keep both out of thecourtroom, in keeping with our duty ofcandor to the court.For The Defense n July 2009 n 71