“I’m sorry, but we are conflicted out” – the communication that no law firm wants to hear. While it is tempting to underplay this process, it is critical for a firm offering expert witness services, especially within a high-stakes litigation context, to have a rigorous conflict check system in place.
Conflicts can be viewed as being of two types: (1) direct or objective conflicts, and (2) indirect or subjective conflicts. Objective conflicts, once identified, become clear to the service provider that no relevant information about the dispute should be shared. On the other hand, subjective conflicts may not represent a legal, institutional, or personal barrier; however, either the expert witness firm or the end client (once disclosed to them) may decide not to pursue the engagement after assessing the nature of the case or parties involved.
Objective processes still require a great deal of thoughtfulness. For example, conflicts could be identified at the firm or testifying expert level. Examples for an expert are: (1) the candidate was involved in the same dispute representing the adverse party, (2) they have offered opinions in the past that established a contrary position, (3) they have previously published literature expressing opinions contrary to the matter (4) they have worked or have an interest or affiliation with parties involved in the dispute.
Examples of objective conflicts at the firm level are: (1) they have engaged an expert to support the adverse side, (2) they have previously engaged experts to provide opinions on related matters representing the adverse side, effectively establishing a firm position on the related issue.
Examples of subjective conflicts at the testifying expert level are (1) they do not want to be associated with specific subject matters or lines of argument, (2) they do not want to be associated with specific parties, (3) they believe they cannot provide an independent opinion due to personal principles.[1] Testifying experts do not lose their independence by turning down cases based on subjective conflicts, but will certainly risk it if they take on such cases, if that ultimately results in a biased opinion.
Examples of subjective conflicts at the firm level are: (1) they have a long-standing relationship with opposing counsel or client, and the firm takes the business decision not to oppose them on an unrelated matter, (2) they are positioned as operating primarily for plaintiffs or defendants, and the potential matter may run counter to that posture, (3) they do not want to be associated with specific matters or lines of argument, (4) they provide consulting services to parties named in the claim.
Conflict checks should not be informally run, based on the memory of work done on past case matters by the individual expert, and with an eye on potential business conflicts at a firm level. As a firm becomes more sophisticated, the concept of relying on off-the-cuff processes and expert recollection becomes indefensible. The too obvious risk becomes that conflicts are discovered “down the road” i.e., after expert reports are filed, or before and during testimony. Ultimately, no one wants to be in a position in which the adverse party is the first to identify a conflict, and an expert who is likely a key plank of a litigation strategy becomes disqualified.
If a conflicts process is to be thorough, the starting point must be a large, systematic process involving a high degree of objectivity. Although technology can be a great help in screening and identifying potential conflicts by matching entity names, parties involved, cases numbers, etc., the software output will only be as good as the quality, accuracy, and thoroughness of the data loaded and maintained in the system. This means an ongoing process of updating case data and other information, and extensive monitoring of system integrity.
A conflict check system cannot however be only an exercise of matching keywords and case numbers. Good conflicts processes will include a database of summary opinions provided by each expert in connection with the matters in which they were engaged and provided written opinions or testimony. A firm would never want to volunteer an expert who in a similar case has given an opinion that was contrary to the perspective being sought.
Software tools may help with matching key words, terms, parties, case numbers, individual and entities, but it will not be able to capture some of the subjective type of conflicts. No matter how sophisticated your conflict check software may be, there will always be a human element that will require assessment outside a system. Effective expert witness firms will have senior consultants providing a subjective overlay, perhaps in the form of a conflict check committee. By applying experienced judgement and enabling appropriate discussions among the firm and potential experts, conflicted candidates can be eliminated before they are presented to a hopeful client.
Additionally, proper record keeping should also be part of the conflict check process. This includes documenting the conflict check report results together with any comments and assessment conclusions. This will allow the expert witness firm and the testifying expert to review and audit that conflict checks were performed and the respective actions that were taken.
Conclusion
When assessing a potential expert for a case the correct starting point is always “does the candidate possess the right expertise and background?" then “does the firm have the right resources to support the case?” but as important is “can the expert deliver objectively independent and unbiased opinions and testimony? When areas of potential conflict arise, no matter how minor, it is critical that expert witness firms share all relevant information that could represent a potential conflict, as perceptions may differ in the eyes of either the counsel or end client, especially when viewed within the context of a unique dispute or specific legal strategy.
At SEDA Experts we pride ourselves on our ability to manage conflicts in a robust fashion. Our approach combines a proprietary database of potential avenues of conflict, with senior involvement in case management. While conflict management is a constant work-in-progress we believe combining both detailed objective criteria and technology with experienced eyes on subjective conflicts is the best approach to serve our clients.
[1] Experts are not asked to take a side on the matter in which they get retained. They are tasked to provide independent opinions based on the agreed scope.
EXPERT INVOLVED
Sergio C. Godinho
Sergio Godinho is a senior professional with diversified experience in both the financial services industry, as well as providing advice in litigation, dispute resolution, mediation, and business consulting matters, including class actions and class certifications. He works closely with senior experts in establishing causation, liability, and damages across a vast array of dispute matters. Click here for his bio
Learn more about SEDA at sedaexperts.com
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