"Ethics" or "Witness Tampering"? (Part 2)

In part 1, we posited four theses about medical society rules on expert testimony, and we selected the AAEM’s Position Statement on expert testimony as an exemplary vehicle for purposes of further discussion. It may now be helpful to orient readers to the general direction that the argument is expected to take.

The Current Climate of Debate

The recent movement by some medical societies to regulate expert testimony provokes strong reactions on both sides. The word “sides” is chosen advisedly, because participants’ pre-existing ideological stances and economic allegiances are fairly good predictors of what their opinions will be on this issue.

The Ideal-Typical Proponent of Medical Society Rules on Expert Testimony

The leading proponents of medical society regulation of expert testimony (primarily physicians and “tort reform” advocates) generally portray and/or perceive such regulations as an effort by knowledgeable professionals, who devote their careers to a noble and socially beneficial service, to assume some formal responsibility for the role played by members of their profession in discussion and decision-making about medical issues in a specific and important arena: litigation. The proponents, in other words, see medical society regulation as a socially responsible means of fostering rational and informed discourse, and of combating a certain set of perceived social ills. Those perceived ills may include, among others: (a) a sense that prevailing legal rules and interests foster sham or intellectually dishonest testimony that works to benefit undeserving malpractice claimants and their lawyers, while unfairly stigmatizing treating physicians (or even operating to their economic devastation) and hampering the effective and inexpensive provision of medical care (call this a “policy” concern); and (b) a sense that irresponsible testimony by mercenary experts-for-hire demeans the profession, debases the public discourse, and hampers rather than promoting the goal of truth-seeking debate, discussion, and decision-making, whether in litigation or more broadly (call this an “ethical” concern).

To be sure, some proponents may not formulate the issues in this way, and indeed may not formulate the issues by reference to considerations of public policy or professional ethics at all. The positions of some may be driven mostly by economic interest, or by simple feelings of solidarity in what the media consistently portray, and what many understandably see, as a “war” between healthcare providers and the plaintiffs’ malpractice bar. But if one goal of responsible debate is to move people’s thinking away from reflexive “us-vs.-them” reactions, and toward more open-minded assessment, it behooves us to assume the possibility of good-faith motivations among the participants, and to engage their strongest arguments, rather than focusing entirely on their most dubious ones.

The Ideal-Typical Opponent

Leading opponents of the rules (primarily members of the plaintiffs’ bar, and perhaps some consumer-oriented groups) generally portray and/or perceive the medical society rules as efforts by professional guilds to circle the wagons and insulate their members from accountability. They see such rules as tainted by an inherent conflict of interest, and as presenting a major potential for abuse, because the rules may silence legitimate expert testimony that could otherwise expose negligent or incompetent medical practitioners and facilitate the compensation of their victims. What the proponents see as the nurturance of responsible discourse, the opponents see as ham-handed censorship and a potential vehicle for ruinous retribution against honest witnesses who have the courage to blow the whistle.

Once again, the thinking of some opponents may be less complicated than that. In particular, if members of the plaintiffs’ malpractice bar couldn’t find expert witnesses to testify in their clients’ favor, they would have to pursue new career choices, some of which might require knowledge of math. To have an opinion on medical societies’ rules about experts, that may be all such lawyers need to know. But once again, it may move the ball forward if we assume that medical society rules might be opposed on serious and disinterested grounds that warrant some consideration and respect.

Some Features of the Current Debate

The arguments of both camps (and to be very clear, we number among the opponents) involve some emphasis on the corrupting effects of economic incentives on expert testimony. Neither side’s arguments about those corrupting effects should be lightly dismissed. It should be frankly acknowledged, all the same, that absent radical restructuring of our current legal system (in which experts are retained by the parties and compensated for their, um, time), such incentives probably represent an ineradicable feature of the landscape. Both sides in a medical malpractice controversy have every intrinsic incentive to maximize their own options about expert testimony, and to minimize the adversary’s. Repeat players have every incentive to do so on the institutional level, in addition to their lawsuit-by-lawsuit battles. And groups with common interests have every reason to band together to promote their aims, as a kind of group protection arrangement. AAEM does, and so does ATLA.

Given those inevitable interests, and the equally inevitable conflicts between them, there might be two approaches to controlling the incentives’ corrupting effects. We are not speaking, here, of disagreements between those who tend to respond by wanting to regulate the content of testimony versus those (ourselves included) who tend to see more speech as the best remedy. Those disagreements are largely disagreements of emphasis. The current litigation system employs a mix of both methods (censorship, a.k.a. evidentiary rules, on the one hand, versus cross-examination and responsive testimony, on the other), and most people believe that in general, it should. In a more perfect world, it might be hoped that censorship would be unnecessary, because in the long run, with unfettered discourse, the truth might be expected to out. But the world of the courtroom is not the world of the long run. We have finite time and resources to resolve litigious controversies and a strong interest in promoting the finality of their resolution. And so, in the shorter, courtroom run, discussion will be finite. There is, in circumstances of limited and finite discussion, a notorious danger that propaganda and spin will carry the day. And for that reason, everyone would draw the evidentiary line somewhere. The system should not permit juries to be taken in by cynical practitioners of charlatanry and fraud. And over the relatively short span of a trial, they might be.

Here we pause briefly to digress. As modern techniques of persuasion grow ever more sophisticated, and as the art of rational argument increasingly loses ground to the science of spin and cognitive manipulation, it could be felt, if one were taking the long view, that keeping expert testimony within rational confines is a program more promotive of plaintiffs’ interests than defendants’. Spin doctors are expensive, and sometimes rationality is the only power tool on the poor man’s argumentative shelf.

But to return to our agenda, the two competing methods for ameliorating the corrupting effects of economic incentives on expert testimony might be described broadly as follows. On the one hand, if the issue were seen primarily as a battle between private interest groups, and/or if the legal system itself were seen as having fallen largely captive, perhaps irredeeemably, to one group’s interests, then the emphasis might be on private action calculated to restore the balance. This might assume the form of principled individual action (“I will testify only truthfully and for the deserving, as I interpret those concepts”) or of more concerted private conduct (e.g., group efforts at moral suasion, perhaps to the point of creating countervailing private incentives, as a balance to the effects of incentives employed by one’s adversaries to their benefit).

Alternatively, one might see certain types of private power struggle over the shape of courtroom testimony as precisely the problem – as precisely the sort of thing, that is, that the state, as the legitimate monopolist in matters of civil adjudication, should regulate, to the exclusion of private, politically unaccountable, and possibly self-interested regulators.

The Direction of the Argument to Follow

The argument here will be in favor of the latter view. Governmental rules about evidence may or may not be benighted, but they are promulgated, at least, by bodies who enjoy a legitimate monopoly in the official regulation of courtroom evidence, in the sense that competing efforts by private bodies should and must yield in case of conflict.

Obviously it will not be proposed that speech about expert testimony (“moral suasion,” as it was called above) be licensed and controlled by the government. It will be contended, however, that in various familiar contexts, there is broad recognition of the state’s legitimate interest in controlling exogenous influences on courtroom testimony, expert and otherwise. Those interests are at their most acute when the exogenous influences are economically corrupting or pragmatically coercive. (Recall that one basis for tort reformers’ disquiet with some expert testimony is its more or less frequent association with compensation practices that can seem to resemble bribery.) The polity’s concerns over such influences currently find legislative expression in laws governing witness tampering and the obstruction of justice.

The agenda, then, just to be clear, is not to march perfectly nice doctors off to jail as their families stand in the driveway weeping. It is assumed that physicians, on the whole, are decent and law-abiding individuals, and that if they should find themselves living under a regime where medical society regulation of expert testimony is legally impermissible, they will abate their efforts to engage in it. The agenda here is rather to inquire, in a more philosophical vein, whether a principled distinction can be drawn between attempts to influence testimony via medical society regulation, on the one hand, and attempts to influence testimony by other methods that are generally regarded as illegitimate, on the other. To put the question another way, the inquiry is into whether we risk inconsistency, if we permit medical society regulation of witness behavior without also permitting other forms of evidentiary interference that we may not be (and certainly have not been) prepared to countenance. More in this vein in part 3.