Transparency and Professor Bill Simon's Article

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.

Comments

[AF]

I find this post unfair to Simon. The first point, about disclosure, seems overstated. Simon discloses his involvement in the Nextel case, at the beginning of the section discussing it. And it seems relatively obvious that his report in the case is substantially the same as his analysis in the article. Given the sophisticated nature of the article's likely readership, it seems quite improbable that the disclosure will be overlooked or the nature of Simon's involvement misunderstood.

The post's second point, 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," seems similarly misplaced. On its face, this would apply to all arguments, since even the most unbiased arguments "stake out positions on issues . . . by choice." Even if the point is limited to positions taken in non-academic settings, it seems far too broad. It overlooks the possibility that the author committed to the position out of belief in his own argument -- which hardly detracts from the credibility of the argument. Further, it leads to the untenable conclusion that arguments should not be taken at face value unless their authors refrain from becoming involved in any related real-world disputes. The ordinary tools of academic analysis, aided by full disclosure, seem adequate to distinguish between good and bad arguments, without adjusting for cognitive biases deriving from the fact that their authors have "stake[d] out positions on the issue."

I should add that though I post semi-anonymously for professional reasons, I have never met Simon or any of the individuals mentioned in Simon's article, and learned about the Nextel case for the first time upon reading the article.

[Andrew Perlman]

AF,

Thanks for your comments. Given the conspiracy of silence point in Prof. Simon's article, your anonymity seems particularly appropriate!

With regard to your first point, Professor Simon did mention that he played a role in the case, but I think people should know the full extent of that involvement. Professor Simon offers very little in this regard, and given that other information about the case is not easily accessible, the omission leaves me unable to judge whether he is presenting the Nextel case in an objective way.

As for your second point, my primary concern is that we can't fully assess Professor Simon's arguments about the Nextel matter, because (again) a lot of the underlying documents are not yet publicly available. As a result, our ability to assess his arguments turns to some degree on his motives. So it's not simply that he worked on the case that leads me to question his conclusions; it's that we have very little else to go on in a case where expert testimony was still being offered as of last week.

Another reason that I am concerned about Professor Simon's role is that he is not simply describing a substantive disagreement; he is impugning other people's integrity. I think such criticism can be appropriate. But I think that, before Professor Simon attacks the integrity of the defense experts in Nextel, he should describe his precise involvement in the case more prominently and fully.

To summarize, readers are being asked to draw some pretty big conclusions about the targets of Professor Simon's article without being able to easily access all of the relevant information. Given Professor Simon's role in the case (which is still a bit vague), I am reluctant to buy into his conclusions without a lot more information.

[RJC]

Andrew

Does it follow from your argument that we now need to know about your relationships with Hazard and Wolfram? Are they your friends, were you once a student of either, do you use their books, have they vetted your manuscripts, recommended your work to journals, invited you to appear on panels, visit? Did they ask you to defend them? Why go down the road of "genetic argument"? Why not just join issue with Simon on the merits, to the extent that is possible, and where it is not possible, indicate as much and say why? What is served by reproducing behavior you attribute to Simon and find fault with? Simon's article is provocative only because he name names - why not have at it on its own terms (or is that what you are doing, naming his name)? What's the point of a frolic and detour? Who cares about his motives if his analysis holds up, and if it does not hold up then bad motives are the least of his problem. Why the big flanking action?

[Andrew Perlman]

RJC,

For starters, I don't know Hazard personally, and I have met Professor Wolfram a couple of times. That's it. Otherwise, I don't have a professional or personal connection with either of them.

Regarding the rest of your point, I would love to be able to assess Professor Simon's arguments on the merits (in the Nextel case), but I can't. That's my point. There's so much about this case that we don't know that I can't draw any meaningful conclusions. I have no idea whether his analysis holds up, because I haven't seen the record in the case. When you add the lack of available evidence to Professor Simon's personal involvement in the case, we're left with some serious questions about Professor Simon's conclusions in the Nextel matter.

It's for these reasons that my concerns are not a frolic and detour. Professor Simon attacks the character of the Nextel experts, and we have very little to go on regarding that attack. Professor Simon may, in fact, be right about what he says, but given Professor Simon's involvement in the case and the lack of other evidence, I'm not willing to draw any conclusions about the targets of his article (at least as to the Nextel matter).

[jc]

A very interesting article by Simon, makes a valid point with which I very much agree. As for the naming of names, it is most effective in those instances where the appendix gives a copy of the legal opinion letters with which Simon finds fault. I am less persuaded in those instances where I really have to take his word for what people said in a particular case. He names several names, but the appendix only provides two examples. I think if Simon worked on a matter at all it is inappropriate to use that as an example.

(By way of full disclosure while remaining anonymous, I know one of the targets casually, don't know the others.) But I really agree with the overall point Simon raises about the flawed market for ethics opinions such as this.

[AF]

Andrew -- Thanks for the responses, which seem valid, though I am still unclear what further information we need about Simons's involvement. The real problem seems to be that it is difficult to assess his arguments as the underlying documents are not publicly available. Presumably, Simons's response would be that the solution is to make the documents available and have a debate, and that in the mean time "incomplete discussion is better than no discussion." But as you point out, that is a debatable proposition.

I post semi-anonymously (you can get my email from my initials) because, given my current position, I don't want my web comments coming up on Google searches for my name. I have nothing whatsoever to do with this case. However, now that I have staked out a position, I may have cognitive biases!

[Andrew Perlman]

AF,

My thoughts on this issue have definitely become more refined since my original post, as I have benefited from comments on the blog and from communications with other people. (Put another way, although I have staked out a position and developed some predisposition to defend it, I am open to adjusting it to some degree...)

I would say, at this point, that my primary concern is the combination of Professor Simon's involvement in the case PLUS the lack of easily accessible documents to assess the merits of his attacks on the defense experts. If all of the relevant information were easily accessible, my concerns about Professor Simon's personal involvement would be diminished.

In the meantime, I continue to urge considerable caution about drawing any conclusions about the defense experts in Nextel. As John Steele notes, there was a jury verdict for the defense last week. Obviously, that doesn't necessarily undermine Professor Simon's arguments, but it does suggest that there is more nuance here than meets the eye.