The Scientist as an Advocate: When and When Not

Michael  J. Wade; Urs  Broderick Furrer

doi:10.4236/jep.2018.95030

Michael J. Wade¹, Urs Broderick Furrer²

Abstract: As most of us fundamentally know, there are times a scientist should and should not act as an advocate. As an individual, advocating for environmental preservation is almost required as a member of the world’s scholarly scientific community. However, when that same scientist is asked to offer opinion testimony as an expert witness within the parameters of a lawsuit filed within their particular legal system, there is no room for advocacy. Because it appears that the line an expert scientist must not cross is becoming ever more blurred, we intend to discuss when a scientist should and should not act as an advocate and the reasons that the line between advocate and impartial expert exists. In a legal setting such as a trial or an arbitration hearing, scientists are required to be qualified as an “expert” on the technical subject being considered by the trier of fact before rendering any opinions. Indeed, scientists, unlike all other witnesses, are permitted to present opinions regarding otherwise admissible evidence after being accepted by the Judge as a qualified expert in the field to which he or she intends to testify. However, while the scientist is permitted to present his or her opinions, the scientist is not permitted to advocate for a position or for their interpretation of the evidence presented in a courtroom trial or an arbitration hearing. Rather, those roles are reserved for the parties’ attorneys. Rather, it is the role of the scientist to solely offer opinions with respect to the evidence or facts which are the subject of the dispute. In doing so, the scientist is expected to act as disinterested scholar or teacher faithfully interpreting the data whatever it may reveal. In the eyes of established legal systems, such as the United States (U.S.) or United Kingdom (U.K.), were a scientist to attempt to become an advocate, rather than a scholar and teacher, that scientist’s opinions would no longer be based on fact but, rather, the interests of his or her client, thus damaging the scientist’s credibility. In doing so, the expert could potentially cause irreparable harm to his or her client’s case and his or her reputation.

Keywords: Expert Witness, Environmental Forensics, Advocate, False Advocacy

Cite this paper: J. Wade, M. and Broderick Furrer, U. (2018) The Scientist as an Advocate: When and When Not. Journal of Environmental Protection, 9, 501-507. doi: 10.4236/jep.2018.95030.

References

[1] Ru, L., Zhu, R.X., Yao, D.L., Yang, Z.X. and Wang, D.C. (1992) “Kejuzhi,” in Zhongguo da baikequanshu, Zhongguolishi. Vol. 1, Zhongguo da baikequanshuchubanshe, Beijing/Shanghai, 527.

[2] Xu, C.S. (1992) “Kejuzhidu”, in Zhongguo da baikequanshu, Jiaoyu. Zhongguo da baikequanshuchubanshe, Beijing/Shanghai, 202.

[3] Kennedy, J.F. (1956) Harvard University Commencement Speech. Harvard University Archives.

[4] Sanders, J. (2007) Expert Witness Ethics. Fordham Law Review, 76, 1539.

[5] Finkelstein v. Liberty Digital, Inc. No. CIV.A. 19598, 2005 WL 1074364, at *13 (Del. Ch. Apr. 25, 2005).

[6] Huyghe Sr., S. and Chan, A. (2013) The Evolution of Expert Witness Law under UK and US Jurisdictions. Construction Law International, 8, 14.

[7] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

[8] Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).

[9] United States Federal Rules of Evidence, Testimony by Expert Witness, Rule 702 (2011)

[10] Model Rules of Professional Conduct, American Bar Association, Preamble and Scope (1983)

[11] United Kingdom Civil Procedural Rules, Experts-Overriding Duty to the Court, Rule 35.3 (1984)

[12] Lubet, W. (1999) Expert Witnesses: Ethics and Professionalism. Georgetown Journal of Legal Ethics, 12, 465.