Expert Bias and Disclosure: Professor Bill Simon's Reply to Andrew Perlman and John Steele

Both Andy and John suggest that the credibility of my argument about the "case study" in the second part of the article is affected by the fact that I learned about the case as a consultant to one side and/or by my limited disclosure about my participation.  I don't entirely disagree, but I think they exaggerate, and I'm concerned that the tendency of their arguments is to make it too difficult to criticize professional conduct of public significance when a powerful party wants secrecy. 

The Record

One reason I thought the Nextel case a good illustration was that the credibility of the most important opinions can be assessed with relatively few documents.  Some of the conclusions, I argued, were wrong on their face.  Most of the rest are based entirely or largely on a "Dispute Resolution and Settlement Agreement" (DRSA).  The major exception is the issue of the adequacy of disclosure for informed consent, though even here I thought some of the opinions suggestive on their face of either carelessness or bad judgment.

The website on which I intend to make materials from the case available is not up yet, but the DRSA has always been available to anyone who knows how to reach me.  Eventually, the article will be vetted by the editors of the Stanford Law Review, and I know from past experience that they are not lax about matters of substantiation.  In the meantime, I could make specific materials available in response to specific requests. 

Experts and Bias

No one can disagree with John when he says that my arguments cannot be considered "conclusive" or must be treated "with caution", but I think he and Andy exaggerate the degree of skepticism that my prior participation as an expert warrants. 

Andy says we should be suspicious of litigation experts because they develop a cognitive predisposition toward the people who recruit them (even if they're unpaid).  No doubt true, but is this different from various other predispositions that influence arguments?  Academics have predispositions that arise from ethnicity, religion, politics, class, friendship and many other forces.  The most powerful predispositions probably arise simply from the desire for public respect and recognition that comes with prevailing on a position you are identified with.

John says that we have to be suspicious of litigation experts because we know that there are two sides to the story, and we're hearing only one of them.  Again true, but hardly unique.  There are two sides of almost any question we would want to read about.  When we know only one side, we are properly cautious, but there is no reason to confine or focus this stricture on litigation experts.

Andy's and John's strictures imply great cynicism about expert witnesses. They know expert witnesses are supposed to be disinterested. (In principle, the standards of disinterestedness for expert witnesses are higher than for academic commentary.  Bias is only one factor we use to appraise academic writing, but an expert is supposed to be certified as at least moderately disinterested before being allowed to testify.)  Yet, they think in reality they are commonly partisans.  I don’t say they are wrong, but I am distressed that they don’t address my point that encouraging expert witnesses to integrate their litigation work openly into their academic work is part of the solution, rather than an extension of the problem.  I formulated my views with the intention of arguing for them publicly in an academic journal.  I anticipated that they would be subjected to peer scrutiny and criticism.  That should enhance my credibility.

Moreover, whatever the discount that should be applied to my argument because it is only one side seems to me substantially balanced by a premium due to the fact that (so far) the experts I criticize haven’t replied.  (I sent them my draft months ago and have received no response, and Wolfram and Hazard have yet to accept offers from the Stanford Law Review to reply there.)   Silence in the face of harsh criticism is customarily taken to warrant an inference in favor of the criticism.

Now I did acknowledge that the experts may feel unable to respond to the criticisms concerning the Nextel matter because of confidentiality commitments.  The fact that such restrictions are common is to my mind the only reason for treating the expert situation as special.  Nevertheless, I don’t think the factor should be weighed heavily in general or especially in this case.  When an expert agrees to a confidentiality stricture, whether it was her idea or the client's, she formulates her opinion knowing that it is unlikely to be subject to public criticism and review.  We ought to take that as a discount on its credibility. 

Moreover, the discount should be quite high in this case.  LM&B and the employers it collaborated with have sought zealously to keep their deals secret, but these efforts have now collapsed.  (The key events were the reversal by the New Jersey state appellate court of a trial court secrecy order in a case involving Prudential Insurance and the refusal of the New Jersey federal district court to seal the record in a case involving Nextel.)  Now that the terms of the deals can be publicly discussed, the clients would seem to have every interest in authorizing their experts to respond to unfair criticisms.  If they haven’t done so (or the experts haven’t asked them to), we are entitled to draw inferences.  Of course, such inferences are "not conclusive" and must be drawn "with caution."  But I don’t see why they shouldn’t be as strong as the ones John draws against my arguments.

And I don’t think the adverse inferences against LM&B, Nextel, and their experts are rebutted by reference to the litigators' customary practice of advising everyone they have any influence over not to talk about any pending case except in formal processes where the litigators are in control.  A client who is confident of her position is free to and sometimes will take the risks of ignoring such cautions in order to tell its story.  (LM&B's strategy in Nextel and other cases was to publicize their clients' claims as extensively as possible until the employer came to the settlement table; only then would they negotiate Draconian confidentiality provisions.)    

Disclosure: My Back Story

Andy suggests that I shouldn't ask people to think about the merits of my arguments until I provide enough information to assess my bias.  He thinks he needs to know what my motives were (e.g., did I ask for access to information as "compensation" for my testimony?) and what I did do exactly in the case.  John reports that I was disqualified as a witness in the case I referred to and that (since my article was posted) a jury returned a verdict in favor the defendants.  He thinks readers will want to weigh these facts in appraising my arguments.  (Although he regards my arguments as barely worth notice because they are supported only by several pages of reasons and description of the pre-trial record, he encourages people to take account of the jury verdict without any knowledge of what the evidence was at trial other than the fact that I didn't testify.)

Curiosity about such matters is natural, and I'm happy to tell the story here.  I also intend to update the article to take note of the trial. (At the moment, I don’t know much about what happened there.)  However, I did not want to discuss these matters extensively in the prior draft because, first, it was unclear how things would play out, and second, such discussion would distract attention from the merits.  I strongly disagree with Andy that extensive disclosure of such matters is a pre-requisite to argument on the merits.  We rightly expect disclosure of a few basic considerations, especially financial interests and institutional affiliations.  But a demand for extensive disclosure of any unusual back story that might influence one's views is paralyzing and trivializing.  It postpones attention to the merits.  And it sets up demands that are largely unsatisfiable because issues of motivation are inherently ambiguous and because the curiosity that fuels the demands is partly prurient.  After I've answered your questions, you will usually have a whole new set.

(Reading John Steele's critique, I couldn't help wondering where he was coming from. Has he advised clients with respect to aggregate settlements like the one here?  Has he conducted himself as an expert witness or retained or prepared expert witnesses in ways that are in tension with my arguments?  Yet, it would never occur to me to say that John has to open up about such matters before he can make his arguments.)

I first heard of the LM&B cases through Angela Roper, a New Jersey litigator who has courageously and tenaciously worked for years seeking redress for former clients of LM&B in various employment matters. She asked me in 2003 to look at a DRSA with many similarities to the Nextel one that was negotiated with Prudential Insurance.  At some point, I indicated to her that, if fuller discovery confirmed the impressions I had from the information she gave me, I could serve as an expert witness for her clients. The Prudential case has languished in pretrial limbo, as various preliminary battles have played out, and I haven't been active in it. (See the account of the battle over sealing the record in Ted Gup's Nation of Secrets (2007), pp. 239-41.) 

There have been three cases arising from the original Nextel settlement. First, there was a class action filed in the Colorado state courts, initially on behalf of all of the Nextel claimants. (Several of them were Colorado residents.) Ultimately, about forty claimants opted out of this case. This case was settled, and the record was sealed by agreement. Nobody is allowed to talk about the terms of the settlement, as I was reminded many times by LM&B's counsel. A second case with all but two of the opt-outs is now languishing in pretrial limbo in the southern district of New York (after being transferred from the federal court in New Jersey. I had nothing to do with the Colorado class action, and have not yet to done anything in the federal case.

The case as to which I reported my participation in footnote 60 involves the two Nextel claimants who opted out of the Colorado class action and did not participate in the federal case. In addition to being clients of LM&B, these claimants were hired by LM&B to recruit other claimants (according to them; LM&B disputes this) and to assist with getting claimants to agree to the DRSA and with processing their claims.  They spent a good deal of time advising clients about the DRSA.  They say they did not see a copy of the DRSA and did not understand the key terms regarding attorney compensation and conflicts of interest until long after they and most of the claimants agreed to it; and that when they finally did learn of these provisions, they protested vigorously.  Clearly, however, the factual issues with regard to informed consent are more complicated with them than with the other claimants.  In addition, these claimants were differently situated from the others because they had employment, as well as professional liability claims, against LM&B. 

This is the case that went to trial a couple of weeks ago and in which the jury found for the defendants. Angela Roper referred the Colorado plaintiff's counsel to me in 2006, and I agreed to testify. I told him that I did not want to be paid but that I wanted to remain free to discuss and write about the case publicly. He said, in effect, no problem. In a discovery report on my testimony, he characterized me as testifying "in return for" permission to talk about the case, but that was not accurate. (I corrected this during my deposition.) The plaintiffs would have been happy to have me talk about the case even if I had not agreed to testify.

Unfortunately, the Colorado lawyer didn’t send me materials I was supposed to look at until after the court-imposed deadline for the completion of discovery. My report was late (although still several months before the trial date), and the defendants moved to exclude my testimony on that ground.  Plaintiff's counsel did not oppose the motion, and the court granted it by default. I do not know why plaintiff's counsel behaved as he did. His conduct surprised and disappointed me in many respects.

So the case in which I was involved and learned much of the information about the Nextel settlement was idiosyncratic in some ways. My paper focuses on the general issues of the Nextel settlement. Those are the issues that Hazard's and Roy Simon's ex ante opinions focused on, and when I discussed Roy Simon's and Bruce Green's ex post litigation opinions, I mentioned only aspects of those opinions that did not turn on facts peculiar to the two Colorado plaintiffs.

Comments

[John Steele]

Thanks, Bill, for responding.

The main point in my post dealt with the way your article conflated disparate roles. I found your thesis unpersuasive. I'm continuing to refine my critique on that point and will have more to say later.

I had a secondary point, urging readers not to draw hasty conclusions on an incomplete record; urging readers to hear from both sides; etc. I stand by that point. I was disappointed to see some references on the internet (and here I'm not referring to you, Bill) that struck me as wildly premature and uninformed. I wondered to myself: if I, who specialize in this field, cannot begin to draw conclusions even after reading Bill's article, how can people outside the field jump to the sorts of negative conclusions that reasonable people only draw after careful, sober reflection?

Third, there's a point I am now developing and will add to my next piece on this issue: the relevance of the court procedures and outcomes. When I mentioned that your expert testimony had been stricken, I said that that was "for various reasons" and I didn't suggest that the merits of your argument should be rejected because they had been stricken. It was part of the complicated procedural history and was a recounting of your participation in the matter. As I've said, when an argument with conclusions is presented without all the accompanying data (as your article currently is) then the prudent reader assesses the author's potential bias stemming from being a participant in an emotional, hard-fought series of matters.

But I realize now that it also speaks to another aspect of this matter: what counts as "frivolous." I said in the piece that an expert witness has to run a gantlet of procedrual and substantive tests. When we try to determine whether a particular expert's testimony was frivolous, one thing we can examine is how well she or he ran that gantlet. In other words, did the opinion withstand adversarial scrutiny? As I've noted, the circumstances under which your testimony was stricken do not, in my view, discredit the substantive content of your views.

But if, for example, an expert in a matter "ran the procedural and substantive gantlet," and presented a thesis that was validated by the judge's jury instructions and that was likely to be upheld on appeal, then a reader would have adequate grounds to conclude that the expert's work was neither frivolous nor blame-worthy. So, depending on the circumstances, the litigation results can shed real light on the issue.

It will take me a while to examine the recent defense verdict. But if the record shows that the DRSA withstood a vigorous legal challenge, that would be grounds for drawing conclusions about the DRSA and about anyone who who opined that it would withstand legal challenge.

I realize that sometimes judges and juries get things wrong. And I understand that there were some oddities in that Colorado litigation. (For example, as I understand it, the plaintiffs were on their third set of lawyers and there was an issue about whether obtaining a fourth set would be necessary.) But in general, one way to think about frivilous positions is to ask how well they would fare when tested.

[Andrew Perlman]

I am grateful that Professor Simon has taken the time to respond to our posts. I have just a few comments in reply.

First, I think Professor Simon's accusations in the Nextel case raise different concerns than the ordinary biases that a scholar may have because of her race, religion, etc. First, in the typical scholarly piece, you can judge an argument on its face. All of the data or information needed to criticize a work is typically readily available. In the Nextel case, by contrast, the relevant materials to assess all of Professor Simon's arguments are not yet publicly available. In light of this lack of information, I think it is entirely reasonable for us as readers to know whether Professor Simon might be predisposed to disagree -- and disagree strongly -- with the defense experts. His role for the plaintiffs certainly creates such a predisposition, which when combined with the lack of publicly available information, argues strongly for caution in assessing Professor Simon's arguments, at least as to the Nextel matter.

A second reason that Professor Simon's article is not like the usual scholarly piece, where an academic brings her own personal biases to the table, is that the article is not just offering a substantive disagreement; he is impugning the integrity of other people. Now, he may be right about his views on the merits in the Nextel matter, but it's quite another matter to call the experts on the other side "enablers" of "pernicious" conduct.

I can't help but think of the many times when I was in practice when lawyers tended to demonize the other side, calling them unethical, unprofessional, etc. It's a natural reaction, in my view, when people take positions contrary to our own, especially when the stakes are quite high. Again, I'm not saying that Professor Simon is wrong to criticize legal ethics experts who engage in bad behavior, but I would have preferred that he did it in a case in which he was not involved. In my view, Professor Simon's accusations are more aggressive than they would have been had he not been involved in the case.

Regarding Professor Simon's claim that his article has more credibility because the defense experts have not responded, Professor Simon himself recognizes that he has put the defense experts in a terribly awkward position. It is a bit unfair for Professor Simon, who acknowledges that he was disqualified and cannot be called as an expert, to expect the defense experts to come out guns blazing regarding their views on a pending matter in which they are to be called as experts. In fact, if they did respond publicly, I'd advise them to get their malpractice coverage up to date, because in my mind, it could give the plaintiffs more fodder for cross-examination. Why would they do that?

I also have some concerns that Professor Simon circulated a draft of his article to the defense experts in a pending case. I could imagine how I would have reacted upon seeing that I was going to be vilified by a well-known academic as a result of testimony that I was planning on giving in a case. It would certainly have a chilling effect, even if I felt quite comfortable with my position. In my view, Professor Simon should not have circulated his article to the experts during a pending proceeding, and he should have waited to post his article until all of the Nextel cases had reached their conclusion.

Finally, I now agree with Professor Simon that a full disclosure about his involvement in the Nextel case *by itself* isn't necessary to assess the merits of his argument. It is the combination of his involvement *and* the lack of publicly available information that causes me to call for caution.

[Paul Gordon]

The following facts concerning the Colorado action are available for a complete evaluation:

1) The case was pending in Denver District Court, State of Colorado, and is Case Number 2003-CV-893.

2) On October 4, 2007, the Colorado trial court ruled that general releases given to Nextel were not void as against public policy and that the general releases barred the plaintiffs' claims against Nextel.

3) The testimony of Professor William Simon would have been cumulative of the testimony of two other experts who did testify on behalf of the plaintiffs. Unlike Professor Simon, the other two experts were licensed to practice law in Colorado and had not written and distributed a draft of an article the author intended to publish after the trial. The order striking Professor Simon's testimony was a formality accomplished after the decision was made not to call Professor Simon to testify under the circumstances.

4) Professor Simon did not disclose to Colorado counsel the content of the draft article until Professor Simon's deposition. In particular, Professor Simon did not disclose the fact that he criticized other testifying experts by name and thereby jeopardized the independence of his opinions for the purposes of his credibility at trial. As for Professor Simon's suggestion that he did not receive documents in a timely fashion, the readers are welcome to review the Denver District Court public record, which speaks for itself.

5) On November 7, 2007, the Colorado trial court ruled that, as a matter of law, a client can consent to the type of conflict created by the DRSA, provided that the client receives adequate disclosure.

6) On November 8, 2008, the Colorado trial court instructed the jury to find that the defendants had not breached a fiduciary duty to the plaintiffs so long as the defendants provided the plaintiffs with adequate disclosure of the conflict created by the DRSA.

7) On November 8, 2008, the Colorado jury found that the defendants had not breached a fiduciary duty, implicitly finding that the plaintiffs had received adequate disclosure of the conflict.

8) I am the Colorado counsel, and I would be happy to answer any questions I am permitted to answer without violating Colo.RPC 1.6. However, I do not intend to monitor this site, so you may direct your questions to me as follows:

Paul Gordon
650 South Cherry Street, Suite 835
Denver, Colorado 80246
303-756-0800 x104
pgordon@gorlaw.com

[James Ryan, Colorado attorney]

Paul Gordon, Denver attorney is the most unethical attorney I have ever met. Many volumes could be written about his improprieties. Nothing he says is trustworthy or credible and that is a fact. Ironic that he writes about credibility and witnesses. So much so that I felt compelled to have to address this.