Kelly indicated in mid-2022 that expert witnesses are placed in the difficult position of defending against the accusation that, as “hired guns,” they are willing to give any testimony that will support payment of an expert witness fee.
Whether juries perceive expert witnesses as hired guns depends upon the circumstances. Research suggests that expert witnesses who cannot justify large fees and those who frequently testify as experts are most likely to be perceived as hired guns. Laurance Jerrold recently discussed his role as an expert witness in dental malpractice cases. Jerrold testifies for both plaintiffs and defendants, usually offering opinions as to whether a practitioner followed the applicable standard of care. As an expert witness should, Jerrold first determines the standard of care and then forms opinions by examining the facts and asking whether the practitioner satisfied that standard. If his conclusion does not favor the party that wants to hire him, he declines the case.
An expert who forms an unbiased opinion is not a “hired gun.” Yet experts are often tainted by the “hired gun” label. Industries that are held accountable by expert testimony in litigation strive to create the impression that anyone who testifies for a fee is incapable of giving an honest opinion. As Jerrold points out, some courts have used language that plays into the stereotype of expert witnesses as hired guns.
The Wrobleski Decision
The Wrobleski decision is a favorite of insurance industry lawyers who want to demonize expert witnesses. The Maryland Court of Appeals was asked to decide whether a trial court erred by allowing an attorney defending a medical malpractice case to ask the plaintiff’s expert witness how much money the witness earned that year from working as an expert witness.
Courts are divided in their willingness to allow parties to probe the finances of expert witnesses. The Federal Rules of Civil Procedure permit discovery of the compensation paid to expert witnesses in the case before the court. Some courts permit inquiry into the percentage of an expert’s income that is derived from services provided to lawyers as opposed to services provided in the expert’s profession. The inquiry into income earned from other work as an expert witness may be limited or expansive, depending on the court. Given the differing views of courts concerning the relevance of expert compensation for services rendered in other cases, it isn’t surprising that Maryland courts were asked to decide the question.
It is nevertheless surprising that the court responded to that simple question with gratuitously disparaging remarks about expert witnesses. The court recognized that “expert witnesses play a vital, indeed a necessary, role in the trial of certain cases.” Courts in fact require expert testimony to establish certain facts, such as the accepted standard of care for medical treatment, when those facts are a matter of opinion and are outside the knowledge of ordinary jurors. It therefore seems unusual to suggest that necessary testimony — testimony that courts assure us can only be given by experts — would automatically be viewed with skepticism.
The court nevertheless noted that courts view expert testimony “with some misgiving.” The court relied on an 1858 Supreme Court observation that each party can usually find an expert to support the party’s position. That, of course, is the nature of opinion evidence. If everyone held the same opinion about a fact, there would be no need for experts to prove the fact.
It is true that experts often disagree, but so do fact witnesses. One fact witness might testify “the light was red” while another testifies “the light was green,” but nobody suggests that all fact witnesses are unreliable simply because they have differing views of the facts.
The court also relied on an 1864 treatise suggesting that the views of expert witnesses can, to some degree, “be made to correspond with the wishes or the interests of the parties who call them.” After citing additional scholarly writings from the 1800s, the court suggested that concerns about expert witness bias have only increased in more recent times. Quoting an advisory committee on the Federal Rules of Evidence, the court noted that “[t]he practice of shopping for experts, the venality of some experts, and the reluctance of many experts to involve themselves in litigation, have been matters of deep concern.” Many lawyers are deeply concerned about the practice of shopping for judges and the venality of some judges, but that doesn’t make lawyers doubt the ability of most judges to be fair.
The court also quoted this tidbit from an evidence professor who spent only four years in private practice: “Practicing lawyers can quickly and easily locate an expert witness to advocate nearly anything they desire.” Lawyers with longer experience in the real world of litigation quickly learn that finding experts who will say what the lawyer wants them to say is actually quite difficult if the lawyer is hoping for testimony that is unsupported by a reasonable view of the evidence. Lawyers often turn down cases after discovering that no credible expert supports their tentative theory of the case.
Overstating the Problem of Expert Bias
As the Wrobleski court noted, when an expert witness testifies for the plaintiff, another expert is likely to testify for the defendant. Both experts will be compensated for their service. The adversarial system of justice places faith in juries to decide which expert is more credible, just as it trusts juries to decide which fact witnesses are more credible.
The adversarial system also relies on lawyers to expose the weaknesses of expert testimony through cross-examination. The Wrobleski decision characterized expert witnesses as “professional witnesses” who might be capable of withstanding cross-examination. It would be just as accurate to classify police detectives as professional witnesses, given the frequency with which they testify, but courts do not suggest that police detective testimony should be viewed with skepticism simply because they gain experience at withstanding cross-examination.
Juries are more than capable of deciding questions of witness bias. The adversarial system is based on a belief that the testimony and cross-examination of witnesses will allow juries to determine the truth — or, more precisely, to determine whether a party’s proof is sufficiently strong to prove its case. Jurors listen to each lawyer’s claim that the other party’s expert is a hired gun. They decide how much weight to give those arguments, along with many other factors, when they evaluate an expert’s credibility. Judges like those on the Maryland court should put more faith in juries and less faith in stereotypes about the willingness of expert witnesses to slant their testimony in exchange for fees.
Related Articles
6 Red Flags that Might Persuade Lawyers to Reject a Potential Expert Witness (here).
How Can Expert Witnesses Guard Against Claims of Bias? (here).
Tips for Withdrawing an Expert Witness (here).
To Smile or Not to Smile: Advice for Expert Witnesses (here).
Witness Testimony Themes, Cross Examination, & Preparation Consultants (here).
Rules of Evidence (here).
Federal Rules of Evidence (here).
Seventh Circuit Reminds Judges Not to Evaluate the Correctness of Expert Opinions (here).
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