The testifying expert has the right to:

1.   Abide by the code of ethics of the profession.
2.   Fair technical review of the work product.
3.   Use reliable scientific, technical, or professionally based data and tests to support conclusions and opinions.
4.   Receive adequate and fair compensation for services.
5.   Assist the fact finder in reaching a just and fair determination of the matters in dispute (Rule 702, Federal Rules of Evidence).
6.   Render his opinions based upon knowledge, training and experience (Rule 702, Federal Rules of Evidence).
7.   Rely, in certain cases, on hearsay to support conclusions if it is usual for professionals to regularly rely on such hearsay information (Rule 703, Federal Rules of Evidence).
8.   Use relevant and reliable data gained from the scientific method to support his opinions and conclusions (Daubert v. Merrell Dow, 509 U.S. 579, 113 Sup. Ct. 2786, 125 L.Ed. 2d 469 (1993)).
9.   Tender probative evidence if the offered material outweighs the danger of unfair prejudice to any party (Rule 403, Federal Rules of Evidence).
10.   Be given all relevant data by counsel engaging the expert's services.
11.   Render unbiased professional, technical and scientific opinions based upon investigation and examination of the relevant facts and data concerning the matter presented.
12.   Be kept informed as to new developments and new evidence in the case that could alter the expert opinions.
13.   Assume that other investigations relied upon by the expert were conducted correctly. (Caution: Remember the root configuration of the word "assume.")
14.   Unconditional engagements; that is, engagements that are not outcome driven.
15.   Have adequate time to prepare and complete the assignments presented.
16.   Be free of threats by attorney or client concerning possible contempt of court or court sanction for not answering all questions presented.
17.   Have a deposition conducted in a comfortable and physically agreeable setting.
18.   Be permitted reasonable recesses during deposition or testimony episodes to accommodate for fatigue and physical comfort.
19.   Adequate notice of his endorsement as an expert witness in any civil proceeding for which he is so denominated.
20.   Have interrogatory and other written discovery responses updated and kept current by the attorney engaging the expert's services.
21.   Make reasonable destructive tests of evidence on condition that adequate notice is given to the opposing party, and opposition experts are provided an opportunity to be present during those destructive tests. (Caution: Court orders may be required.)

The testifying expert should not be:

1.   Subjected to any coercion by counsel or client.
2.   Subjected to corruption of scientific fact to reach a predetermined result.
3.   Required to use particular tests that are outcome prescribed.
4.   Required to be an advocate for a dispute outcome. (Caution: Enthusiasm for one's position or research is not prohibited. To advocate is to argue; to be enthusiastic is good teaching.)
5.   Asked to use questionable scientific, technical or professional methods to support research or investigation.
6.   Denied written documentation of the test results of other experts.
7.   Subjected to threats of demotion or transfer for test results.
8.   Subjected to any external or distorting pressure of any kind that would shade, color, alter or amend his professional, technical, or scientific judgment or findings.
9.   Subjected to the withholding of key documents or facts by counsel or the client.
10.   Subjected to questions regarding the expert's private life during the deposition or trial process.
11.   Subjected to frivolous discovery requests.
12.   Required to tender false evidence in any dispute resolution process or proceeding.
13.   Required to ever use tests of questionable scientific validity.
14.   Tricked or misled by engaging counsel or cross-examining counsel.
15.   Subjected to selective fact gathering or being "blindsided" by inadequate presentation of facts.
16.   Forced to recant prior inconsistent positions without ample and adequate fact or research justification.
17.   Pressed to accept assignments beyond the expert's competence.
18.   Subjected to testimonial situations that create conflicts of interest.
19.   Required to serve as a forensic expert on a contingent fee basis.
20.   Subjected to inquiry about personal finances, unless that inquiry could directly relate to the expert's bias, prejudice or partiality.
21.   Subjected to repetitive, argumentative, redundant or insignificant questioning.
22.   Subjected to badgering or overly aggressive examinations.
23.   Physically threatened in any way in any dispute resolution proceeding.
24.   In a position to have the opinion as an expert sought without affording the expert an opportunity to conduct an appropriate investigation of the data, premises or tests used.
25.   Put in the position of having to render a favorable opinion in order to be paid for professional services.
26.   Forced to wait inordinate lengths of time to testify while under subpoena.
27.   Contacted by opposing counsel without notice to the attorney retaining the expert's services.
28.   Forced to testify if retained only as a consulting witness (subject to very narrow, limiting exceptions).
29.   Asked about a case merely to disqualify the expert witness in that matter.
30.   Asked to testify without adequate deposition or trial preparation.
31.   Subjected to inquiry into any aspect of personal or private life or habits that would embarrass, humiliate, intimidate or harass the expert when such questions do not relate to competency as an expert witness. This includes inquiry into religion, political beliefs, sexual preference, health or finances.
32.   Forced to make disclosure of confidential business, commercial, industrial or other trade secret information.
33.   Subjected to an examination protocol that is designed to wear down the expert rather than discover relevant information.
34.   Subjected to any examination or treatment that is beyond the bounds of professional common sense and courtesy.

(Source: Succeeding as an Expert Witness, by Harold A. Feder, Tageh Press 3^rd edition 2000.)

Back Forward