Attorney/Expert Communications

• Author: Craig M. Pease
• Position: Ph.D., a research scientist, teaches at the Vermont Law School Environmental Law Center
• Pages: 18-18

Page 18 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2011

By Craig M. Pease

Attorney/Expert

Communications

The tension between law and sci-

ence is perhaps nowhere greater

than when an attorney hires an expert.

Such experts are ubiquitous in toxic

tort litigation, for example concerning

asbestos, MTBE, and dry cleaning

solvents. e cold, hard cash that the

attorney pays the scientist is an obvi-

ous problem, but not, I believe, the

central problem (actually of course, it

is the attorney’s client who ponies up).

If the attorney were simply to hire the

expert, and not correspond with them

again until the day of trial, the ethical

dif‌f‌iculties would be much ameliorat-

ed. More serious problems arise when

the attorney and expert exchange not

money, but information.

is happens when an attorney

and a scientist collaborate to write an

expert witness’s report, required under

Federal Rule of Civil Procedure 26(a)

(2). Such a report must contain, in-

ter alia, “a complete statement of all

opinions the witness will express and

the basis and reasons for them,” and

“the facts or data considered by the

witness.” It is hardly ever the expert’s

sole work product, rather being the

consequence of oral and written com-

munications of some sort (see below)

between a zealous advocate (attorney)

and supposedly objective observer

(expert). e opportunity for trouble

is manifest.

e changes in FRCP 26(a)(2) that

became ef‌fective in December 2010

greatly restrict discovery of commu-

nications between attorneys and their

retained experts. is will change how

attorneys and experts collaborate,

making it much easier for attorneys to

ghostwrite the reports of their experts,

without fear that the written trail of

their having done so will be discover-

able..

e changes restrict discovery of

communications between an attor-

ney and an expert they have retained

to three narrow categories, including

“communications that relate to com-

pensation for the expert’s study or tes-

timony, . . . that identify facts or data

that the party’s attorney provided and

that the expert considered in form-

ing the opinions to be expressed [or]

that identify assumptions that the

party’s attorney provided and the ex-

pert relied on in forming the opinions

to be expressed.” Critically, although

the recent changes limit discovery,

they do so only in certain respects.

Many scientists will

be concerned that the

recent changes still al-

low discovery of a re-

tained expert’s corre-

spondence with other

scientists not involved

in the litigation.

e old rule had ridiculous con-

sequences: If what is written is dis-

coverable, then the obvious solution

is not to write anything down. is

is precisely what experienced experts

formerly did. As “e Report of the

U.S. Judicial Conference, Committee

on Rules and Practice and Procedure

of September 2009” states, “the prac-

tices also include[d] tortuous steps to

avoid having the expert take any notes,

make any record of preliminary analy-

ses or opinions, or produce any draft

report.” e old rule thus encouraged

expert behavior antithetical to the

very essence good scientif‌ic practice,

requiring careful written documenta-

tion and open collaboration and com-

munication.

e rule changes will encour-

age more open and extensive written

communications and collaborations

between the attorney and expert, by

making them less discoverable.

e nuanced and sticky practical

issues of how attorneys and experts

communicate, as governed by FRCP

26(a)(2), are but the superf‌icial mani-

festations of a more fundamental

underlying conf‌lict between law and

science. is conf‌lict is rooted in the

fact that at their core these two dis-

ciplines have very dif‌ferent objectives.

e goal of law is conf‌lict resolution,

whereas the goal of science is to pre-

dict and understand natural phenom-

ena. Not surprisingly, given these

dif‌ferences, law and science use very

dif‌ferent frameworks to structure a

jumble of facts into a comprehensible,

holistic story, to achieve their respec-

tive objectives.

For example, the law structures

facts with the attorney’s theory of the

case, the requirement that causation

be demonstrated with reference to

general causation and specif‌ic causa-

tion, and Daubert fac-

tors for assessing the

reliability of expert

evidence. Conversely,

science structures facts

with diverse theories,

hypotheses, and con-

cepts such as the the-

ory of evolution by natural selection,

a f‌igure summarizing a biochemical

pathway, or a mathematical equation

that in one neat package summarizes

diverse statistical analyses.

Ironically, the attorney is, in a real

sense, also an expert. Scientists know

facts, and the theories their disciplines

employ to structure these facts into

comprehensive stories. But this is not

really what courts desire. Courts need

and want scientif‌ic information, but

presented within the relevant legal

framework. is is the attorney’s exper-

tise. Alas, the attorney who brings this

expertise to the attorney/expert collabo-

ration is also a zealous advocate.

Craig M. Pease, Ph.D., a research scien-

tist, teaches at the Verm ont Law School En-

vironmental L aw Center. He can be reached

at cpease@ve rmontlaw.edu.

S   L

As a result, there

will be more

lawyers ghostwriti ng

expert reports