A Typical Code of Conduct: A code of conduct for attorneys and expert witnesses typically covers the following general areas:
Role of the expert witness. The expert's role is that of a consultant to perform experiments, tests or analyses; prepare written reports; provide testimony at deposition and trial; and serve in an advisory capacity at trial or for litigation preparation.
Communication. Frequent communication should occur between the expert and attorney to avoid unnecessary misunderstandings.
Prior contacts precluding retention. If information of a confidential nature is provided to an expert, the expert should keep records of that consultation. Later disclosure could serve to disqualify the expert from future assignments in the same case.
Written retainer contract. Agreements — including fee estimates, scope of services, and the expert's qualification if necessary — are to be part of a written retention agreement. Payment responsibilities regarding fees, deadlines, advance payment and cancellation requirements should also be included.
Fee guidelines. Factors to be considered in setting fees for forensic assignments include:
- Time spent on the case.
- Degree of knowledge and skill required.
- Amount of effort expended.
Itemized billing. Itemized billings are to be provided on a regular basis to expedite payment.
The expert's lawyer. Experts often have to hire their own counsel when certain ethical or procedural matters present themselves. It would be improper for the state's or client's attorney to serve as the expert's attorney. The expert may need an independent attorney on matters regarding production of documents, production of prior studies, and guidance for deposition or trial testimony.
Disclosure and discovery guidelines. Four issues are covered:
- Confidentiality and privilege.
- Formal methods of disclosure and discovery, including the procedure by which answers are to be provided.
- Informal contacts with third parties, including opposition experts.
- Releases to authorize disclosure.
By far, the most troublesome area is the matter of informal contacts by third parties. The guide instructs that the retaining lawyer shall be contacted if third parties attempt to discuss a case with a retained expert. This precaution usually suffices to protect the interests of the client and the attorney work-product, which could be exposed by such contacts.
Subpoenas and scheduling of testimony. The attorney should respect the expert's time. Every effort should be made to ensure that the expert is available to testify at a certain time; avoid detaining the expert an inordinate length of time in order to testify.
Deposition testimony and the obligation of payment. The party taking the deposition of an expert shall be obligated, under the rules, to pay for the costs of preparation, the time taken, and a review of the deposition transcript.
Mutual understanding of roles in preparation for testimony. Five points should be covered:
- The manner in which reports, tests, records, documentary evidence and exhibits are to be prepared, filed and maintained.
- The types of information on which expert opinion can be based, keeping in mind the evidentiary rules that might apply.
- The importance of answering questions asked by opposing counsel in a forthright manner, using simple and understandable language.
- Scheduling requirements, and other areas requiring cooperation between the lawyer and expert.
- Preparation of an updated résumé or curriculum vitae by the expert whenever major changes occur in the expert's credentials.
Dispute resolution procedure. An interprofessional committee composed of experts and lawyers is established for resolution of any dispute that arises between forensic experts and attorneys. Both parties are urged to utilize the interprofessional committee, rather than court processes, to resolve disputes.
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