Professors Find Testifying Is a Trying Experience
Following controversial news reports about a doctor's triple involvement as a medical journal editor, researcher and legal consultant, the Harvard-affiliated Brigham and Women's Hospital last month rewrote its conflict of interest policy to limit expert testimony.
The policy now requires doctors hoping to serve as expert witnesses to obtain permission from their department heads.
Like their peers in the medical profession, members of the Faculty of Arts and Sciences (FAS) frequently serve as expert witnesses--and examples of FAS professors' testimony in court rarely fail to be memorable.
In the fall of 1993, Kenan Professor of Government Harvey C. Mansfield, Jr. '53 testified in a Colorado court to determine the constitutionality of the state's Amendment Two, which would have prevented cities from enacting gay rights statues.
In his testimony, Mansfield called homosexuality "shameful" and said it "eventually...undermines civilization."
Outraged students called for the University to censure Mansfield.
"That remark is absolutely offensive and repulsive, and we're ashamed he's a professor here," Dennis K. Lin '93-'94, then co-chair of the Bisexual, Gay and Lesbian Students Association, said at the time.
"I think the University should look into this and react to this," Lin said.
But Professor of Philosophy Warren D. Goldfarb '69, who has been a vocal advocate for gay rights, said that Mansfield's testimony was not the University's concern.
"A professor is free to have whatever opinions he has and say them wherever he wants," Goldfarb said.
The Faculty of Arts and Sciences (FAS) places no restrictions on its professors testimony in court as expert witnesses. Faculty members are asked to testify frequently, on issues from legislative redistricting to patents.
Those in the legal profession say the use of professors and academics as witnesses is appropriate and desirable.
"People who are teaching are very up-to-date in their particular field. They're up-to-date on the technology and knowledge," says Carol J. Sherman, co-CEO of Technical Advisory Service for Attorneys, which helps lawyers locate expert witnesses. "I think that would be a definite advantage."
But several professors who have served as witnesses, including Mansfield, say they would never do so again.
"A whole set of issues come up. The other side may be trying to smear you," says Loeb University Professor Walter Gilbert, who has testified in two patent cases this year. "It's not a hobby. It's a serious business."
Mansfield recalls asking a colleague at Harvard Law School for advice before testifying in Colorado.
"I consulted a friend...who said, 'Don't do it. They'll cut you to pieces,'" Mansfield says. "I said confidently, 'What can they do to hurt me? They can only make a fool of me.' That certainly was bornout."
"You have these dreams of glory that you'll take an experienced lawyer and turn him into a bundle of confusion. I didn't succeed in that at all," Mansfield says. "I left a couple of quarts of blood on the witness stand."
Warren Professor of American Legal History Morton J. Horwitz says the Supreme Court has recently put limits on expert witnesses and the topics on which they may testify.
In a 1993 case, Daubert v. Merrill Dow Pharmaceuticals, a woman who had a child with a birth defect sued the drug company, claiming the drug had caused the defect.
"The only witness that the plaintiff had was a doctor who had gone on a crusade saying the drug caused defects. There was no conventional scientific study," Horwitz says. "The question was, 'Can anybody with professional credentials be an expert witness or do you need to have studies?'"
"The Supreme Court leaned very strongly toward keeping 'quack' witnesses off the stand," he says.
Horwitz says expert witnesses have become indispensable in tort and personal injury cases. But these expert witnesses are very expensive.
"To get expert witnesses, you have to pay them, put them up in fancy hotels, pay for transportation," Horwitz says. "The expert witness requirement is sort of a wealth bar to suing."
Horwitz also points out that in many cases both sides have expert witness, each with experience and credentials.
"On all of these questions, the experts testify in different ways," Horwitz says. "It justifiably creates a degree of cynicism of whether [the witness] is testifying for the person who pays the piper or is giving a dispassionate, disinterested professional judgment."
In the only case in which he has testified, Horowitz says he definitely felt pressure to say what the attorneys who hired him wanted. Horwitz testified as an historian in a case about who owns the land under the Atlantic Ocean.
"They didn't care if I was an historian," he says. "I felt that they constantly wanted [me] to testify beyond what I could conscientiously testify to as an historian. I felt a real tension."
But Gilbert disagrees, saying pressure to say certain things is not much of a concern to professors.
"If my side doesn't like the way I see it, that's tough," he says. "You're unlikely to get involved in something as an expert in which you will be coerced. You're likely to turn down something if you don't agree with the underlying attitudes."
Professor of Government Gary King, who has testified in four or five redistricting cases, says he has frequently disagreed with attorneys who have wished to hire him as an expert witness.
"More than once, I've told them, 'No, you're not right,'" he says. "Once I said, 'It's my recommendation that you fire me.'"
Gilbert recalls that an expert witness on the opposing side of a case in which he testified once had a difficult time defending his position.
"One side, our side actually, had a very good case and had three scientists from the period who had a good time testifying together," Gilbert says.
"The other side had a specious argument. They had as an expert witness a professor from Cal Tech who had a miserable time," he says. "He ended up making a strange argument and getting torn to pieces."
According to Frankfurter Professor of Law Alan M. Dershowitz, attorneys face a distinct disadvantage when they hire a Harvard professor as an expert witness.
"It depends on the jury. It introduces an element of elitism," Dershowitz says. "Sometimes I look for a state college teacher rather than an Ivy League elite academic."
But King points out that there is value to having academics serve as expert witnesses.
"There an people out there who have not written a word in academic literature who don't know anything testifying in hundreds of cases," he says.
Conflict of Interest
Both Brigham and Women's and the Harvard Medical School (HMS) have recently revised their policies on the right of doctors to testify or serve as the advisors to attorneys.
The Brigham and Women's regulations will require doctors who want to act as expert witnesses or paid legal consultants to request prior approval from their department heads, hospital spokesperson Terri Horbach-Torres said. HMS is now requiring professors to list legal consulting work on their annual disclosure forms, according to spokesperson Keren R. McGinity.
But FAS does not currently have any such policies.
"I always tell everybody what I'm doing. But there's certainly no permission," King says. "You don't have to get permission."
Universally, professors say they have not been concerned about issues of conflict of interest between their testimony and their work at the University.
"Academics have academic freedom," King says. "It's not really the kind of thing you would think of, imposing more rules on academics."
Dershowitz says he could imagine a problem arising if a professor said something which could hurt the University of his students.
"But I think professors are pretty sensitive to that," Dershowitz says. Dershowitz himself refuses to be hired as an expert witness.
"There is an enormous difference between defending someone in court and [acting as] a witness for hire," he says. "It's totally contradictory. The lawyer is an advocate. The witness is a sworn truth-teller."
Dean of the Faculty Jeremy R. Knowles says it's important that faculty members who testify do so without implying that they are speaking as representatives of the University.
"I agree with President Lowell's position which was that professors could make authoritative statements in their field outside the University, but they should not carry the weight of a Harvard professorship when making pronouncements," Knowles says.
Despite possible conflicts, Assistant Professor of Psychology Michelle Leichtman, says there are reasons professors should testify.
"I think it is very important that we share what we learn in our laboratories with the courts, once the information is 'ripe' enough to be digested by the legal system," she says.
Professors have chosen to testify for a variety of reasons, ranging from curiosity about the legal system to a feeling of professional responsibility.
Mansfield says he testified in the Colorado case because he was interested in the politicization of the courts.
"This seemed to me to be a rank and flagrant example of that. Here was an actual vote of the people being overturned, which made the winners into losers and the losers into winners," Mansfield says. "Partly I also reacted to the problem of finding anyone who would do anything to get gay activists upset. My experience amply showed why people hesitate."
When Mansfield was subsequently asked to testify in a similar case in Cincinnati he refused. "I wouldn't be in a hurry to do it again," he says. "I didn't want to get identified with the gay rights issue."
King says he turned down many requests to testify before finally agreeing to work on a redistricting case for the first time.
"I had exactly the instinct...I'm an academic. I don't do this," he says. "The first person who convinced me to do this said, 'You're the one who's written all the these articles. You have a personal responsibility.'"
But testifying has proved profitable for King. Through his work on one case, a foundation which had collected $3.5 million worth of electoral data donated the information to the Government Department Data Center followed by a grant from the National Science Foundation.
"It opened up a lot of doors. It made a lot of information available," he says. "It also benefited my research."