EXOD836 Can an expert witness tailor testimony? The secular justice system is a perplexing amalgamation. The adversary system on which it is based reminds us of the laissez–fare orientation of the marketplace. Each side competes to convince the judges of the superiority of its own claims, just as each competing business tries to convince the consumer of its own superiority. Yet the ultimate objective is to mete out impartial justice, where the weak and the strong have equal standing. Getting impartial justice out of a competitive process is a daunting challenge, and it demands the highest ethical standards from the participants in the system. Participants must respect the limits of the adversarial aspect of the process, and know when they are called upon to act with impartiality and integrity. This naturally raises the question of whether a hired expert witness has to be impartial. Q: Much of my income as a real estate appraiser comes from testifying as an expert witness. The litigants who hire me expect me to give low appraisals that will help them in court, and if I do not meet their expectations they'll hire someone else who will. Can I tailor my testimony to the needs of my clients? A: In order to answer your question, we'll have to clarify a critical distinction. There is a big difference between a litigant, or party to a trial, and a witness to a trial. Everyone understands that the litigants are not impartial, and that their claims may be carefully crafted to help their case in court. But a witness is expected to provide only facts, and to be completely impartial. Of course, even claims made by litigants must meet basic standards and be reasonable and defensible. The Torah warns the judge to "Distance yourself from falsehood" [this verse]. The Talmud explained that in order to maintain this distance, the parties to a lawsuit must help the judge by making only factual claims, even if a fraudulent claim would be necessary to achieve a just outcome. [Shevuot 31a] Realistically, however, we have to accept that in an adversary system the litigants are permitted to stretch their claims within the limits of what is reasonable and defensible. The job of the litigant is to present his own case in the most favorable light and to highlight weaknesses in the opponent's case. The job of the judge and the jury is to impartially adjudicate these presentations. We applied this idea above in explaining that an accountant is permitted to make a novel interpretation of a tax law and order to help his client, as long as he believes the interpretation can be defended. The accountant does not have to pretend that he is the judge making an objective determination. He is making a claim, and if the tax authorities disagree, they are welcome to make a counterclaim and let a judge decide. By the same token, if your client wants to claim that his property has a low value, you can work as a consultant and prepare documents that tend to support the claim, as long as the documents do not violate the basic standards of your profession. But a much different standard applies to a witness. A witness is never allowed to distort the truth. Even if a witness is called by one side, he is testifying on behalf of the court, not on behalf of a litigant. Jewish law is particularly strict on this point. Not only as a witness forbidden to actually distort testimony; he is forbidden even to feign willingness to serve as a witness in order to intimidate the other litigants into settling. This is true even if the decoy witness is convinced that this will lead to justice being done. The basis for this rule is again the verse, "Distance yourself from untruth" [this verse]. It is not enough merely to refrain from injustice; we have to distance ourselves from injustice by avoiding distortion of the judicial process [Sanhedrin 23a]. While the content of testimony should be unaffected by the payment to the expert witness, the hired witness may and should be careful to bring to light those facts which favor the side which hired him. In other words, he does not bias his judgment, but he does want to make sure that his impartial judgments are brought to the attention of the court so that the side which hired him can get a fair hearing. By the same token, it Is understandable if an expert witness is particularly careful to emphasize points favorable to decide which hired him. But this is not the same as making statements that go against your professional judgment and training. The real problem is with the system. An expert witness is an unfortunate hybrid-engaged and paid by one side yet expected to provide impartial testimony. The ideal situation in cases where expertise is required would be for both sides to agree on an expert. It would be wonderful if judges would instruct litigants to try and agree on an expert in such cases, just as judges sometimes instruct the sides to try to reach a settlement or to engage in mediation. Then there would be a strong incentive for the appraiser to be right on target, since the fairest appraisers would get the most business. If you developed a strong reputation as an impartial and accurate assessor, perhaps you could get business from disputants who will use you as an arbitrator. They will prefer to take their case to you rather than to court, knowing that they will get a fair judgment at a bargain rate since they do not have to pay lawyers.
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