Brian Peter Brinig, JD, CPA, ASA
Abstract: Expert witnesses have become critically important to the litigation process in recent years. This article discusses the ethical duties of experts as they are called upon to analyze and identify matters that are beyond the knowledge and experience of laypeople. (California Evidence Code Sec. 801 and Federal Rules of Evidence Sec. 702.)[JC1]
Attorneys are increasingly using appraisers and other financial professionals in valuation, accounting, financial, and economic matters in a variety of litigation cases. While much is written about experts from an attorney’s perspective, little is directed to expert witnesses regarding their ethical duties and responsibilities. Appraisers, of course, must adhere to a rigorous code of ethics for all engagements, including the requirement to be objective. As a result, it may be easier for appraisers to adhere to the ethical requirements of being an expert.
What are the ethical duties of expert witnesses? In a nutshell, experts have a duty to competently analyze facts within their area of expertise and derive supportable conclusions based on those facts. Frequently, facts can be interpreted or weighted differently. These differences often fall within the range of reason and can result in differing conclusions by experts.
Experts also make judgments about the issues they are analyzing. If those issues are within the expert’s substantive area of expertise, these judgments can be relevant. If, on the other hand, experts are working with issues (or opinions of others) that are outside their area of expertise, it’s usually not within the expert’s province to pass judgments on those issues or opinions.
Expert witnesses also have legal and ethical obligations to testify truthfully about the analysis they have performed. Upon questioning, experts must disclose the facts, assumptions and substantive rationale on which they base their opinions. In my opinion, it is improper to misrepresent or withhold underlying facts, assumptions or substantive rationale that has been applied in a case.
The most common discovery procedures that apply to expert witnesses are depositions and subpoenas compelling the production of documents. An expert has the responsibility to respond properly to these discovery procedures. Appraisal experts should read Federal Rule of Civil Procedure 26 (and relevant state statutes) relating to expert witnesses.
In a deposition, the expert witness is sworn “to tell the truth, the whole truth, and nothing but the truth.” The expert’s duty is to respond to the deposing attorney’s questions truthfully.
If non-privileged documents are called for in a properly issued subpoena, the expert must produce those documents. May the expert alter or destroy the documents demanded in the subpoena? I believe that would be wrong to do so. May experts continue to work on their files and develop the analysis? The answer is “yes,” but the file should be maintained intact from the time it is subpoenaed. From that point forward, changes should be labeled “amended.” Bluntly stated, it is not proper to change or destroy notes, files, or work papers after they are subpoenaed. Those are the files of the expert; the opposing attorney has a right to see them and review them if they are properly subpoenaed.
Some experts view their job as advancing the client’s argument. They fail to understand that it’s the attorney’s role to advocate their clients’ positions. For the most part, attorneys want, and need, honest assessments from their experts, not advocacy.
Experts have an ethical duty to tell what they did, how they did it, why they did it and the present the results in a forthright manner. It’s not ethical to hide or conceal facts, assumptions or “damaging” documents. Experts should perform honest, objective analyses and truthfully testify about their conclusions. Those are the fundamental ethics of expert witnessing.
Brian P. Brinig, JD, CPA, ASA, is a CPA and attorney (non-practicing) who
limits his practice to economic
damages analysis, forensic accounting, and business valuation analysis. He is
an Adjunct Professor at the University of San Diego School of Law and the
managing principal of Brinig & Company Inc., San Diego, California. Email brinigb@gmail.com