Experts rarely work in epistemic silos, out of touch with other experts.  Indeed, it is a hallmark of expert evidence that experts are allowed to rely upon and state hearsay evidence in their reports and testimony.  It follows that communication amongst experts is common and generally something that should be encouraged.  This article addresses the issue of what an expert should do with the information received from other sources, including other experts.

Experts gather knowledge over the course of their career from myriad sources including courses, conferences, symposia, publications, research, and networking.  When drafting expert reports and testifying, it is sometimes appropriate to note the source of information used in the analysis and solution of a scientific question.  It is not a weakness for an expert to incorporate knowledge obtained from other sources; to the contrary, it is often a strength.  Parties involved in criminal and civil litigation cannot realistically expect an expert to know the answer to every question.  Reference by an expert to supportive sources is common.

On occasion, experts may cast a rather wide net and seek assistance with a scientific problem by posting a query to a professional networking site or list serve.  There are valid reasons for this approach, including experts who may have limited peer support because they work alone in their agency, the lack of necessary software, or lack of experience.  Information received via this method may be very helpful or may prove to be adverse to the approach taken by the expert who posted the query.   

What should an expert do with information obtained that is contrary to what the expert has done or concluded?  Should the expert bury such information or include it in the report and prepare to be cross examined on it?  This is a challenging issue, though there is a clear and honorable path to steer in such circumstances.  

A parenthetical look at the practice of law may be of assistance in exploring this issue.  Aside from legal knowledge and the ability to effectively conduct a prosecution, a prosecutor’s reputation is of prime importance in having a successful career.  Other lawyers and the court should always have the confidence that the prosecutor will advise the court of evidence and law that is both favorable and unfavorable to the prosecution.  Accordingly, it is the obligation of the prosecutor to disclose (and sometimes lead) evidence that is contra the prosecution theory, even when it is helpful to the defense.  The search for the truth should be paramount; there is no winning and losing; there is only the pursuit of a just result.  Equally, when making legal submissions to the court, lawyers are ethically obliged to also present case law that does not support their position. Oftentimes, that case law can be distinguished, but it should be raised and discussed.  Professional ethics demands nothing less.   

Bearing this in mind, what are an expert’s ethical obligations when information obtained is not entirely favorable, or in some cases actually opposed to the expert’s conclusion?  Practically, there are two options.  First, make no reference to it in the expert report and do not advise the retaining party’s counsel of the contrary information.  There is superficial attraction to this option as it avoids tipping off anyone to potentially valuable cross examination material and if left undiscovered, will assist the expert in giving solid testimony.  Yet, this option is fraught with danger, exemplified as follows:

• If opposing counsel learns of the contrary information before or during cross examination, questioning is going to be painful and pointed, centered on themes of integrity, ethics, and the expert’s apparent willingness to hide information from the court.
• The expert’s reputation may be harmed.
• The lawyer who called the evidence will find it very difficult to deal with the contrary information in re-examination since he/she was not aware of it to begin with and therefore had no opportunity to research it, discuss it with the expert, and map out a plan to deal with it.
• The trial may be adjourned so that opposing counsel can explore the matter further.  Any such adjournment will be held against the party who presented the expert and can form the foundation for a subsequent motion for relief on the basis of trial delay.
• A miscarriage of justice may occur.

The second option is for the expert to acknowledge the contrary research or opinions in the body of the report and then articulate why the opinion reached is nonetheless sound.  Fundamentally, if an expert cannot defend his/her opinion in light of contrary information, the opinion is likely of questionable merit.  By following this second approach, the expert demonstrates an understanding that the expert’s duty is to the court, not to the retaining party; that the expert is aware of the contrary information, but is confident in the conclusion reached and is prepared to defend it in court.  Ethics and professional integrity rise to the forefront.

Upon issuing such a report, there will sometimes be pressure brought to bear by the retaining attorney to amend the report and to remove or tone down the contrary information.  Should an expert accede to such a request, it is the expert who will be taken to task in cross examination.  Consider the following line of questioning:

Counsel:  You wrote a report and included information that you deemed to be of value.  You wanted my client and the court to know that there was some contrary information.  Do I have that right?  

Expert:  That is correct.

Counsel:  Because you knew that you had an ethical responsibility to fairly put your opinion to the court, correct?

Expert:  That is correct.

Counsel:  And yet, you removed all of the contrary information when asked by the lawyer who retained you.  Given your ethical obligation to the court, how do you justify that?

Expert:  Ummm…

Don’t put yourself in that position.  Be forthright and fully disclose the basis of your opinion, as well as contrary information that you considered, yet rejected.  It is not your case to win or lose.  Your reputation must remain intact beyond any one case.