The brazenness of this scheme to covertly compensate “non-retained” expert witnesses would make a Southern college football booster blush. Even those boosters know to make their handouts in cash — usually slipped through handshakes — or otherwise untraceable “favors” for the extended family. They appreciate the subtlety of the thing, you know?
Except, of course, your rival school. Those pricks are just cheaters.
In any event, here’s a passage from a Fifth Circuit opinion covered by the American Lawyer, that should be obvious, but apparently bears repeating:
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“Lawyers cannot engage with a favorable expert, pay him ‘for his time,’ then invite him to testify as a purportedly ‘non-retained’ neutral party,” U.S. Circuit Judge Jerry Smith wrote for the three-member appellate panel. “That is deception, plain and simple. And to follow that up with [a] post-trial ‘thank you’ check merely compounds the professional indiscretion.”
Well, yes. W. Mark Lanier — the famed plaintiffs’ attorney who periodically crops up to kill tort reform as that rare breed of conservative Republican class action attorney megadonor — earned a severe tongue-lashing as his over half-billion dollar judgment got tossed by the Fifth Circuit.
The account is so stunning in its simplicity, that it’s almost comical to think anyone thought this could be acceptable. Remember, Lanier is trumpeting these experts to the jury as neutral observers with no pecuniary interest in either side:
Despite that designation, as well as repeated references during the trial to the doctors’ “pro bono” testimony, the Fifth Circuit found that Lanier had made a $10,000 donation before the bellwether trial to a charity of Morrey Sr.’s choosing. The court also found that, prior to the trial, Morrey Jr. had expected to receive payments from the plaintiffs lawyers. After the trial, the court added, Lanier sent the two doctors thank you notes that also included a $35,000 check to Morrey Sr. and a $30,000 check to Morrey Jr.
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Astounding.
In ordering a new trial, the panel didn’t mince words in lambasting Lanier’s conduct. They even pulled out the word “pellucidly” for the occasion:
“The facts speak pellucidly: The pretrial donation check, Morrey Jr.’s expectation of compensation, and the post-trial payments to both doctors are individually troubling, collectively devastating,” the Fifth Circuit wrote. “Lanier’s failure to disclose the donation, and his repeated insistence that Morrey Sr. had absolutely no pecuniary interest in testifying, were unequivocally deceptive.”
For his part, Lanier described the ruling as “interesting” and said that “the court misunderstood the issues of monetary representations about the doctors” but generally accepted the smackdown and promised to press on in a new trial. Lanier, it seems, has good reason to feel confident that the next go-around will end more or less like the first.
Likely one with new, fully disclosed experts.
5th Circuit Blasts Lawyer Over Witness ‘Gifts’, Tosses $502M J&J Verdict [American Lawyer]
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.