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Law 101: Legal Guide for the Forensic Expert

Importance of Ethical Considerations

Photo of a dictionary showing the definition of the word 'ethics'. Caption says 'Ethics for Experts'
National Institute of Justice (NIJ) (see reuse policy).

The forensic expert and the attorney may engage in a preliminary discussion, based upon hypothetical facts, in order to determine the expert's general opinion in a given professional area. Specifically, the attorney may wish to determine whether an expert is predisposed to a certain conclusion.

The following example from a civil case illustrates this concept in principle. A typical initial contact dialogue may involve discussions like this:

Attorney:  Doctor, as a thoracic surgeon, I know you have performed a number of operations involving first rib resection.

Expert:  Yes, that's correct. That surgery has often been used to alleviate what's called the thoracic outlet syndrome.

Attorney:  Doctor, my previously healthy client sustained an injury requiring a first rib resection following an automobile collision. After surgery, all symptoms of the thoracic outlet syndrome, including diminished radial pulse, were alleviated.

Doctor, if I can establish for you the facts that I have just recited and if, after you have made an investigation of the medical records and a clinical examination of the patient, you conclude that those facts are accurate, what sort of conclusions would you make as an expert testifying witness about the car crash being the proximate cause of the thoracic outlet syndrome necessitating a first rib resection?

Expert:  If you can establish the facts you just indicated, and if the medical records, the history, and a clinical examination of the patient support that conclusion, it would generally be my belief that, absent other intervening or contraindicative causes, the car crash probably caused the thoracic outlet syndrome and resulting first rib resection surgery.

This sort of inquiry is proper. Note that the inquiry and dialogue: 

  • Allow the expert to determine the general area of testimony required.
  • Require the attorney to state the client's situation accurately.
  • Ensure that the expert opinion will meet the attorney's expectation, if and assuming that the facts stated are actually established.

The following dialogue, as distinguished from the previous scenario, constitutes an improper demand by an attorney. The expert should be forewarned about such unscrupulous tactics and be prepared to respond:

Attorney:  I know you have testified in a number of cases about property valuations in condemnation. The state in this case has offered our clients $100,000 for their property. The client believes the property is worth $300,000.

It's important for me to know at the outset whether your expert opinion can support a $300,000 valuation. If you can't support such an opinion, I'm going to have to find another expert for our client.

Expert:  Well, I'd have to look at comparable sales in the neighborhood, consider the income stream generated by the property, examine the cost of construction of the property, and calculate the depreciation to determine the value of the property.

Attorney:  I'm not concerned at this point about the standard approaches to the value. What I want to know is, can you tell me now that you can support a valuation of $300,000 for this property? If you can't, I'm just going to have to hire someone else.

That type of examination is unethical and improper. The expert is being asked to venture a position for an attorney and client that is not supported by the pragmatic data or has been entirely suggested by the attorney.

The expert can reach a conclusion only after careful, professional, factual and technical investigation. Agreeing with unsupported opinions suggested by an attorney or client is unethical and contrary to the goals of the dispute resolution process.

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