INTRODUCTION :: With its explosion across America’s litigation landscape, expert witnessing has become a foundation for decision-making in virtually all significant cases. Described by some courts as a “cottage industry,” it has also become more lucrative than the usual day job for many professionals. With litigants and their counsel shopping relentlessly for key specialists, and the experts themselves pursuing engagements aggressively, the growth of expert consultations has spawned a proliferation of allegations concerning conflicts of interest. But expert conflicts of interest are not governed by specific procedural rules. Nor is there, in general, specific guidance to be found in the ethical criteria of that expert’s own profession.
As a result, to address conflicts of interest for expert witnesses and consultants, federal courts have developed a distinctive jurisprudence that is not anchored upon the explicit terms of procedural rules, ethical strictures, or even Supreme Court precedent. Instead, a series of federal lower court decisions have crafted an expert-disqualification doctrine based upon a court’s inherent authority to safeguard the integrity of the judicial process and maintain the public’s confidence in the court system. Although critical differences have subsequently emerged in the way courts deploy this inherent authority, key features of the underlying doctrine are still widely followed, despite the lack of procedural rules or extensive appellate case law to direct these principles.
This Article examines the doctrine for expert disqualification that has evolved during the last fifteen years based upon inherent judicial authority. Beginning with a review of the Supreme Court’s inherent power doctrine, the discussion turns to the origins of current disqualification methodology. Next, following a review of the principal criteria employed by the courts, analysis is undertaken of the substantive and procedural issues that arise in disqualification controversies. Finally, this paper concludes with observations concerning the current trends and future needs in this increasingly important area.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital