Monday, August 21, 2006

On Attorneys Retained as Experts on the Law

Remember Harriet Miers? During her brief and ill-fated run at a spot on this nation's highest court, Karl Rove phoned his friend Nathan Hecht, the longest-sitting current justice on the Texas Supreme Court, to ask for Hecht's support of Miers's nomination. Hecht obliged, but Miers's nomination failed, and Hecht is now up on ethics charges. The issue is whether his support for Miers violated provisions in the Texas Code of Judicial Conduct that bar judges from publicly endorsing candidates for public office or lending their judicial prestige to advance the private interests of another. The Austin American-Statesman has more.

We have no opinion on the merits of the charges -- none that we'll be reciting in public, anyway. What more caught our attention was a dispute over one of the experts that Justice Hecht seeks to call in his defense: Tom Phillips, a former chief justice of the Texas high court. Phillips would reportedly opine that Hecht's conduct did not constitute a violation of the CJC.

There is something that many find bothersome about the use of legal "experts" to offer their lofty views on what the outcome of a legal dispute should be. What we're wondering is whether that bothersome element can be stated in clear doctrinal terms of general applicability. Leave aside the occasional situation where the expert's role is to explain, to some trier of fact, the arcane meaning of legal doctrine within some specialized niche -- a complex regulation, say, or Cambodian antitrust law. In some settings, the trier of fact may need to know about such things. We're talking more about legal "experts" retained to offer analyses in the nature of a brief, for the purpose of persuading the tribunal to adopt some particular view of the law.

It is something of a misnomer, of course, to call such experts "witnesses" at all. Where they've been retained to persuade the court to some particular view of the law, they are serving more as legal advocates. It is sometimes said, as a way of explaining decisions to exclude or discount their "testimony," that their legal opinions are of no assistance to the court, which is itself presumed to be expert in the law. But if that were literally true, then ordinary advocacy would be of no assistance to the court either, and litigators could dispense with legal briefs altogether. That might be a good idea, all in all. But it would represent a change in the prevailing custom.

A better statement of the difficulty might focus on the manner in which the legal "expert" is performing the advocacy function. We were tempted, at first, to say that if the "expert" is not a member of the relevant court's bar, then engaging in advocacy before that court might constitute the unauthorized practice of law. But even if that is technically true, it doesn't seem to capture the heart of the problem, which many would see as equally acute even where the "expert" is licensed to appear before the relevant tribunal.

We tentatively venture, therefore, that it can offend professional norms, to offer legal advocacy on behalf of some litigant, without submitting to the regulatory regime normally associated with such advocacy -- e.g., retention as counsel by some client, appearance as counsel of record for that client, and unequivocal submission to the disciplinary standards to which counsel of record are subject.

We do not say that legal "experts" or their clients are necessarily motivated by a desire to circumvent disciplinary codes of conduct (although that issue may sometimes warrant inquiry). Nor do we say that any such attempt to circumvent them would be successful. We are saying that it serves salutary purposes to require legal advocates to dress in legal advocates' clothing. In many cases, the sole apparent reason to present some lawyer's views in "expert" format, rather than in the normal course of legal advocacy, would be to promote the false appearance of disinterested neutrality. It might be said that nobody's fooled. But we're not sure of that. If there were no real hope of portraying the legal "expert" as a dispassionate authority, hovering above the fray, then why would anyone pursue this course? Why, in any event, should the charade be countenanced?

In some cases, of course, there may be obstacles to the "expert's" involvement as counsel of record. Law schools sometimes have rules about the private practice of law by faculty, and sitting judges aren't supposed to moonlight as litigators. Perhaps an exception should be made in such cases -- or perhaps the same reasons that militate against active courtroom practice by law professors or judges also argue against their participation as "experts." We're not completely sure. We do think that in many cases, a fair and effective way to shut down this often dubious practice would be to require that the legal "expert" frankly don an advocate's mantle, or else hold his peace.


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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.