TODAY THERE IS HELP FOR THE ADVOCATE IN FINDING AND PRESENTING ETHICAL EXPERTS AND IMPEACHING THE UNETHICAL
Louis Brandeis, our Chief Legal Correspondent
We want a court system that will fairly represent the laboring seaman, the professional officer, the ship owner, the cargo owner, the insurer, and the affected public. We want such a court system for our maritime causes not because it is good for the nation's maritime business but because it is dishonorable to tolerate any other kind. There are many societal forces that combine against this desired end state. The counsel selected to represent important private interests such as those of the ship owner or insurer possesses usually ability of a high order, while the injured seaman, or the public interest is often inadequately or wholly unrepresented. That alone presents a condition of great unfairness to the injured mariner or the public interest. Additionally complicated matters not a part of the every day experience of the ordinary public such as most matters involving the nautical arts and sciences often force the court to rely excessively on the professional opinions of expert witnesses. Since my departure from the American Supreme Court Bench to serve at the bar of an even more supreme court I have observed that maritime endeavor has amassed in the last half century an abundant body of easily cited codes, standards, and regulations. It has become rather difficult to believe that an expert must rely on the "custom of the industry" for a description of the proper and safe way to conduct a maritime operation. This is particularly so when the custom of the industry seems to be the direct cause of an injury.
But even a maritime expert who cites to some codes, standards, and regulations in his reports and testimony may be simply using that old lawyer trick, "useful language". The advocate who builds a case on "useful language" simply selects from the codes, standards, regulations, and authoritative literature out of context language that sounds like it supports his argument. But the duty of the expert witness is to justice and not to the plaintiff or defendant. It is the duty of the lawyer to defend his client, it is the duty of the expert to defend his findings only. It is the duty of the expert to inform the court on technical issues. It is not the duty of the expert to advocate for one side or the other in a dispute. To that end in an ideal world the Judge would appoint the experts and apportion costs to both sides with the expert answering only to the judge, but then that might deny one side or the other of the unique insight of a particular expert. So it has evolved that either side may hire experts. The trier of fact must be able to discern when the hired expert is in fact a hired gun utilized only to support the attorney's theory of the case and line of argument and willing to bend the truth or formulate it in an argumentative manner. Since the trier of fact may have little subject matter expertise , hence the theoretical need for an expert, the trier of fact must test the integrity and ethics of the expert. How does one do that with an expert in an unfamiliar profession? Here I think the American Admiralty Bureau about twenty years ago found an answer which we again bring to the attention of the Admiralty bar.
The American Admiralty Bureau Code of Professional and Ethical Conduct may be referred to, or cited by any expert involved in a maritime dispute resolution and providing services of a forensic nature. An "adherent" to the code must comply with the enumerated standards for investigative methodologies and standards of presentation. The code is derived from authoritative literature on good forensic practices and ethics and can serve the cross examining lawyer as well as the report or testimony preparing expert. Because the code is condensed (about 7 pages) a lawyer can review the basics of good forensic ethics and methodologies quickly and prepare a cross examination that explores the process the expert took to arrive at and report on his conclusions. Often, without revealing a specific technical error an expert purveying "junk science" to the court has been exposed and impeached by simply demonstrating that good forensic methods, ethics, or standards of presentation were not followed. We will be posting a link to the code permanently in the AUTHORITATIVE LITERATURE SECTION. You may read it now by clicking on this link: AAB CODE OF FORENSIC ETHICS
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