For the sake of full disclosure, I have great respect for both Professor Simon and the targets of his article. Professor Simon graciously offered me valuable insights when I wrote my first legal ethics article about eight years ago. I have since gotten to know and admire several people whom Professor Simon criticizes in his most recent work. That's a long way of saying that I don't have any personal axes to grind here. But I also want to be as transparent as possible, because Professor Simon rightly notes that transparency "is an essential guarantee of the reliability of a scholar's views."
Ironically, it's Professor Simon's lack of transparency that gives me concern, at least in the context of his critique of the three academic defense experts in the Nextel case. It turns out that Professor Simon was an informal consultant for the plaintiffs' counsel in some of the underlying cases, a fact that Professor Simon only acknowledges in footnote 60. The problem, which Professor Simon fails to address, is that his involvement in the case raises questions about whether his conclusions are the product of an objective, scholarly inquiry.
Here is what Professor Simon has to say about this issue in footnote 60:
I learned about the Nextel settlement as an informal consultant to plaintiffs' counsel in some of the cases and as an expert litigation witness for the plaintiffs in one of them.
A few readers have expressed qualms about my carrying into the realm of scholarship a debate I was invited to join as a litigation consultant or expert. My view is that this practice is not only permissible (where not inconsistent with confidentiality commitments), but desirable. In effect, I am treating my consulting role as an extension of my academic one. And so I should. The idea that the two roles are continuous is implied when the consulting expert's academic credentials are invoked as a token of reliability. In reporting my views, I am subjecting them to the test of peer scrutiny that the academy regards as critical to reliability. Continuity is also implied in the frequent argument by academics that consulting benefits their academic work by putting them in touch with practice. A large part of this benefit would be sacrificed if they felt categorically barred from making the most effective use of their experience.
I do regret that the experts I criticize may feel unable to reply to some parts of my critique. However, incomplete discussion is better than no discussion. To those who worry that it is unfair for me to criticize people who cannot publicly defend themselves, I reply (1) it would be much more unfair if they were immune from all accountability for practices that have important public consequences, and (2) to the extent that their disadvantage arises from confidentiality commitments, it is of their own making.
Finally, without suggesting that such refusal is either a necessary or a sufficient condition of scholarly detachment, I report that I declined to take a fee for my work on the matter.
Even with these explanations, I am unpersuaded. In my view, Professor Simon's involvement requires us to assess his criticisms of the opposing experts with considerable caution.
Many studies have revealed that, when people stake out positions on issues, whether by choice or by employment, they subsequently have difficulty remaining objective about the merits of their positions. See, e.g., Donald C. Langevoort, Where Were the Lawyers?, A Behavioral Inquiry Into Lawyers’ Responsibility for Clients’ Fraud, 46 Vand. L. Rev. 75, 95-111 (1993); Linda Babcock, et al., Biased Judgments of Fairness in Bargaining, 85 Amer. Econ. Rev. 1337 (1995) (finding that lawyers’ assessment of the value of a case varies dramatically depending on which side they are assigned to represent).
So given that Professor Simon consulted for the plaintiffs, we shouldn't find it surprising that he finds the defendant's experts' viewpoints to be biased, "bad," or legally wrong. What is surprising is that Professor Simon reaches this conclusion without acknowledging that his own views might be biased because of his involvement in the case.
To put the point another way, what troubles me is not so much that Professor Simon is criticizing other experts or even that he is criticizing opposing experts in a case in which he was involved. Rather, my primary concern is that he is offering his views as a scholarly critique when, in fact, his involvement in the case makes a dispassionate, objective assessment difficult.
It seems of little import that, as Professor Simon notes, he was not paid for his consulting. In a widely-cited study of 139 auditors at major accounting firms, the auditors were given hypothetical accounting scenarios and asked to assess the accounting in each situation. Roughly half of the accountants were asked to assume that they were retained by the firm that they were auditing, while the rest were supposed to assume that they had been hired by an outside investor who was considering making an investment in the company. In each scenario, the auditors were, on average, significantly more likely to find that the company’s financial reports complied with generally accepted accounting standards when they played the role of the company’s accountant than when they were in role of the investor’s accountant. The point is that once people take on a particular role (e.g., informal consultant to plaintiff's counsel), they have difficulty remaining objective even when they do not receive any compensation and even when the subject of analysis is simply a hypothetical!
In light of these biases, Professor Simon's proposed norms for academic experts seem incomplete. Here is his proposal:
When an academic publicly expresses a view as an expert or authorizes another to attribute an expert view to her, she should take care that the view be publicly accessible and clearly and accurately expressed, with its basis as fully stated as feasible. This duty includes an obligation to clarify and revise public description of her view as long as the view is the subject of public attention. The academic should not make any private commitments incompatible with this principle. Exceptions may be made but only in compelling circumstances, and they should be publicly documented to the extent feasible.
The problem with these norms is that they should also require academic experts to disclose the full nature of their involvement with a legal matter when engaging in any scholarship relating to that matter. Without such disclosures, academic experts could portray their scholarship as objective analyses when, in fact, those analyses might be the result of significant cognitive biases.
So, for example, Professor Simon should not only have explained his involvement in the Nextel dispute more prominently, but he should have explained it in far more detail. For example, what did he do as an "informal consultant" in the case? In the case in which he was an expert witness, what was his testimony? (Footnote 61 suggests a web site where some of this information might appear, but I have not been able to find it.) Did he gain access to documents and waivers of confidentiality as "compensation" for his work? We don't know, and as a result, I am disinclined to buy into his critique of the defense experts in the Nextel case.
None of this, of course, necessarily undermines Professor Simon's central contentions about the role of academic experts. If anything, I'm suggesting that Professor Simon does not go far enough in requiring transparency. That is, the value of transparency -- a trait that Professor Simon argues for vigorously -- would be well-served if his involvement in the case were more clearly and prominently stated, and its effects more fully explored. Without it, his critique of the defense experts in the Nextel case lacks "an essential guarantee of ... reliability...."
John Steele will have more on this article tomorrow, and a couple of other people have notified me by email that they might want to post additional commentary as well. If anyone else would like to do so, let me know.