Saturday, January 31, 2004

Walter Olson on John Edwards and "Zeal"

In a Saturday evening post, Walter Olson respectfully dissents from the view that any duty of zealous advocacy might excuse John Edwards's reliance, as a litigator, on problematic-but-admissible expert evidence. Olson links to an earlier post on the subject of zeal, in which he observed: "Time and again, in our experience, the putative obligation to represent clients in a 'zealous' fashion has proved the last resort of the scoundrel litigator and ethical edge-skater."

Sometimes a lot depends on how you frame the question. Olson is concerned, for example, that Edwards not be immune from reproach if he "employed dubious expert testimony to extract fortunes from innocent obstetricians." To us, that description seems to load the dice just a bit, but no doubt our own characterizations of the problem could also be found wanting in neutrality, by someone who thought we had missed the fundamental point. Beneath the rhetoric, there may simply be an honest difference of opinion on whether the evidence in controversy was legitimate, or instead was so far beyond the pale that no litigator could offer it and hold his head up high. More precisely, there may be a difference of hunch, since the relevant parties do not purport to be familiar with the facts of Edwards's cases.

Sometimes, meanwhile, everything does not in fact depend on how you frame the question. Just to be clear, the argument in defense of litigators who offer controversial expert evidence does not ultimately depend on the ethical requirement that they do so in "zealous" fashion. It would apply even in Arizona, which Olson has extolled for amending its ethical rules to replace the duty to represent the client "zealously" with a duty to "act honorably" in furtherance of the client's interests. The duty in question arises not from any particular verbalization of the litigator's responsibilities in codes of professional conduct, but rather from the litigator's role in an adversary system. That role does not include adjudicating the claims, or withholding admissible expert evidence because the litigator might reach different conclusions as an armchair medical scientist. It does include what the client has a right to expect, and does expect: viz., that on pain of malpractice exposure, the litigator will press the client's interests through whatever evidence is legitimately at the litigator's disposal. That is the "honorable" thing to do. And under the rule of law, it is not the litigator, nor any single man or woman, who ultimately defines the boundaries of evidentiary legitimacy. The rules of evidence do that, for honest advocates and scoundrels alike.

Update: Perhaps from a concern that we not agree to excess, Professor Bernstein has updated his post to concur in Walter Olson's assessment that if lawyers do owe any arguable duty to present evidence they know to constitute "junk science," that duty would disappear if any requirement to represent the client's interests "zealously" were dropped. Of course, this does not address what may be a more common situation, in which the lawyer sincerely believes in the validity of his or her expert evidence, even though it may be objectively dubious. But leaving questions of sincerity to one side, it may matter that the evidence under discussion goes to two indispensable elements of a medical malpractice case: negligence and causation. Quite apart from issues of "zeal," an attorney cannot honorably decline to offer available and admissible evidence in support of those elements just to salve his or her personal ideological or epistemological conscience, unless perhaps the attorney is also prepared to withdraw from the representation. Short of that, a refusal to tender viable evidence in support of indispensable elements of the claim would represent not merely an absence of zeal, but a more basic lack of professionalism.

Further update: Franco Castalone sees the point, and states it more eloquently.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.