Issues in Legal Ethics: Ghostwriting for the Expert Witness

Bruce A. Campbell

The majority of court cases require experts to testify about scientific, technical, or other specialized knowledge. Potential problems arise when experts overly-rely on ghostwritters to phrase the report in terms preferred by the courts rather than in their own words.

Introduction

In today's litigation the use of experts occurs in the vast majority of cases. There are typically a cadre of persons who hold themselves out as having specialized knowledge that would assist the trier of fact in understanding various technical issues, ranging from patient medical conditions to complicated damage calculations. But, what happens when an expert has difficulty expressing an opinion, because a legal requirement must be expressed in very precise legal terms or is just a poor writer. After all, does anyone really walk around telling people that an action was the "proximate" cause of anything? Thus, the question comes down to how many "suggestions" can counsel make without running afoul of the rules that require Candor to the Tribunal?

Who Is An Expert?

Rule 702 of the Texas Rules of Evidence defines experts:

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.

In the vernacular, an expert witness possesses "special knowledge of a subject beyond that of the average person, sufficient that others may officially (and legally) rely on his opinion." (wikipedia) "A ghostwriter is a writer who writes under someone else's name, with their consent." Id. The collaboration of the ghostwriter who, draws the thoughts of the expert into the ink of the report, is within the Court's definition: "Ghost writing a testifying expert's report is the preparation of the substantive writing of the report by someone other than the expert purporting to have written it." Trigon v. United States, 204 F.R.D. 277 (E.D. VA, 2001).

Benefits of Ghostwriting

There are several reasons for ghostwriting a draft. First, an expert whose skill set does not require writing skills will benefit from the literary abilities of a ghostwriter. Second, an expert whose vocabulary emphasizes technical terminology will benefit from ghostwriting because it will help explain the terms in a way that the average trier of fact can understand. Third, experts whose thought processes have been generalized into principles will benefit from the ghostwriter's ability to research specific examples. Fourth, experts whose schedules are filled will benefit from the ghostwriter's ability to focus on the task.

Candor to the Tribunal

Disciplinary Rule 3.03 provides:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclose is necessary to or in assisting a criminal or fraudulent act;…

(5) offer or use evidence that the lawyer knows to be false.

Although we have not found a case in Texas dealing with ghostwritten expert reports, it is clear that some Courts can become quite upset and punish a lawyer who they think is not being candid with the Court. For instance, in American Airlines, Inc. v. Allied Pilots Assoc., 968 F.2d 523 (5th Cir. 1992), the complained of conduct arose out of the December 1990 "sick out" by the Allied Pilots Association ("Union"). The Union allegedly engaged in the "sick out" to wreak havoc on American's Christmas flight schedules. Attorneys for American filed a complaint for injunctive relief and damages against the Union, a Motion for TRO, and a motion for a preliminary injunction and memorandum in support. The pleadings were accompanied by, and incorporated by reference, seven different written declarations in support of the relief requested. Two of the declarations were not signed. These two declarations were modified versions of earlier declarations. The witnesses had orally approved the contents of the revised declarations, but were unavailable to sign them. Two of American's three attorneys knew the declarations were not signed. The signature pages of the declarations contained a line typed "executed" followed by a space. One of the attorney's handwrote the date, "December 26" in the space provided. On the signature line the attorney wrote the symbol "/s/" followed by the name of the witness.

On December 26, 1990, Judge McBryde held an in-chambers hearing on the TRO motion. All counsel were present. Judge McBryde specifically stated that he was relying on the declarations in making his decision to grant the motion for the TRO. One of American's attorneys informed the judge that the evidence submitted with the motion was sufficient to support the issuance of the TRO. None of the attorneys informed Judge McBryde that two of the seven witnesses had not signed their declarations. Judge McBryde issued the TRO.

On or about December 28, 1990, the parties had a telephone conference with the judge where they agreed to postpone the hearing on the preliminary injunction. The Judge told counsel that the declarations could be used at the hearing. All three of American's attorney's participated in the conference but none of them mentioned that Fowler and Siskin's declarations had not been signed.

On January 9, 1991, the court learned for the first time that the Fowler and Siskin's declarations had not been signed. The trial court held a sua sponte contempt hearing on American's conduct. American's attorneys attempted to explain that they understood the "/s/" to mean that the declarant had reviewed and approved the statement but had not yet signed it.

Judge McBryde signed a contempt order and made, among others, the following findings of fact and conclusions of law: 1) the attorneys intended the court to believe that Fowler and Siskin's declarations had been signed by the declarants and that the signed originals were on file with the court; 2) the attorneys misbehaved in the presence of the court when they failed to disclose the status of the declarations; 3) two of American's attorneys had filed false documents with the court; and 4) all of the attorneys had violated Rule 3.03 of the Texas Disciplinary Rules by making a false statement of material fact to the court and by offering and using evidence they knew to be false. The trial court found American's attorneys in contempt of court, in violation of Rule 11, and in violation of various local and state disciplinary rules. The trial court fined Havermann and Mollen, two of American's three attorneys, $6,000 each for their contempt convictions. Havermann was also fined $6,000 for violating Rule 11 of the Federal Rules of Civil Procedure. Both attorneys were stricken from the record as attorneys for American and were barred from appearing before the Northern District of Texas in any matter for six months. The court imposed the six month suspension for violating the local rule.

The attorneys appealed contending that their actions did not constitute unethical behavior under the Texas Disciplinary Rules. The Fifth Circuit upheld the trial court's judgment finding that the appellants had violated Rule 3.03. In so holding the court stated:

counsel presented the declarations in a form that implicitly represented to the court that the signed declarations were on file. This was not true. Counsel nevertheless urged the court to rely on these declarations. Counsel therefore made false statements of material fact and offered and used evidence they knew to be false.

The Fifth Circuit affirmed in part and reversed in part. The court reversed the criminal contempt convictions for procedural and substantive defects and upheld the trial court's findings that American's attorneys violated various local and state disciplinary rules and violated Rule 11.

Havermann and Mollen also argued that the Texas Disciplinary Rules did not provide a basis for sanctions by the district court because Local Rule 13.2 governed their conduct. The appellate court rejected this argument, stating that it was not convinced that the district court could not look to the Texas Disciplinary Rules to define behavior for the purposes of its local rule. The court held that "counsel's behavior was unethical under any standard the district court may have chosen to judge it by."

The appellate court did not address the six month suspension because it had run by the time the opinion was written. In upholding the trial court's remaining findings, the appellate stated "[g]iven the gravity of Havermann and Mollen's misconduct, the district court did not abuse its discretion by fining Havermann $6,000 under Rule 11 or by striking Havermann and Mollen as attorneys of record for American for violating the court's local rules.

Some Courts have taken a different approach. In Trigon, the Court held that "a report can be 'prepared' by an expert witness even if counsel has aided the witness in preparing an expert's report.… Nevertheless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness." Id.at 292. Further, "the expert must also substantially participate in the preparation of his report." Id. at 293. "In contrast, preparing the expert's report from whole cloth and then asking the expert to sign it if he or she wishes to adopt it conflicts with Rule 26(a)(2)(B)'s requirement that the expert 'prepare' the report.… In other words, the assistance of counsel contemplated by Rule 26(a)(2)(B) is not synonymous with ghostwriting." Id.

The Court in Trigon pointed out that a court can broadly interpret what is "considered", by an expert under Rule 26 (a)(2)(B) "The report shall contain a complete statement of… the data or other information considered by the witness in forming the opinions." For instance, the Court pointed out that there is "no distinction between reviewinga document and consideringa document." Simon Property Group L.P. v. mySimon, Inc., 194 F.R.D. 644, 649–50 (S.D. Ind. 2000). Further, "when an expert has read or reviewed privileged materials before or in connection with formulating their opinion, the expert witness is deemed to have 'considered' the materials to satisfy Rule 26(a)(2)(B)." In re Tri-State Outdoor Media Group, Inc., 283 B.R. 358, 364–65 (Bankr. M.D. Ga. 2002). Again, "disclosure simply includes all documents that were provided to and reviewed by the expert" (Trigon v. United States, 204 F.R.D. at 283), "whether or not the expert relies on the documents and information in preparing his report." In re Pioneer Hi-Bred International, Inc., 238 F.3d 1370, 1375 (Fed. Cir.2001). Therefore, any communication between the expert and the ghostwriter, including drafts of the report, must be retained and are open to discovery.

California Ninth Circuit judge, Judge William Alsup, now provides Case Management Orders that influence ghostwriting: "Counsel shall preserve all drafts of expert reports and evidence of communications with experts (or with any intermediaries between counsel and the expert) on the subject of their actual or potential testimony and shall instruct their experts and any intermediaries to do likewise. All such materials shall be produced for inspection and copying upon expert designation." (quoted in California CPA, May, 2004. On-line.) However, it is Judge Alsup's practice to allow all parties to the dispute to agree, in writing, that drafts of expert reports will not be requested and they need not be retained. Id.

Conclusions

Ghostwriting an expert report can be dangerous conduct. It can potentially run afoul of the rule regarding candor to the Court. Alternatively, it can subject an expert to a devastating cross examination which would lead to disqualification of the expert. Nevertheless, there may be times when it is necessary to make suggestions to the expert to protect the client's interests. We will have to see how the cases develop in the area before we know how much "coaching" crosses the line.