In the shiny, bold and brazen world of social media and social networks, LinkedIn—the self-styled "World's Largest Professional Network"—receives recommendations in plenty as the "It" spot for attorneys and other skilled laborers looking to connect, interact, gel, spark, and perhaps spontaneously combust in a dizzying explosion of opportunity. To that end, LinkedIn's toolkit includes discussion groups—cleverly named "LinkedIn Groups"—through which like-minded or similarly inclined Linkedinovians can chat one another up, raise and resolve the burning questions of the day, and potentially (yes!) conjoin for mutual benefit.
It is hardly a bad idea in theory, this seeking out of others whose technical skills and specialized knowledge may meet your needs. It is also not without its perils, especially for those involved in litigation.
Just today, I noticed a discussion thread in the LinkedIn "Insurance Coverage" Group that gave me pause. An attorney in the Buffalo/Niagara region of New York has started a discussion under this title:
Need ins agent expert to testify at trial in NY Sup Ct Erie Co that standard for agent of direct writer is to obtain requested coverage in reasonable time or inform client of inability to do so.
What can we deduce from this? It is reasonably clear that this attorney is involved in active litigation—either a dispute with an insurance company over the terms of a policy or, perhaps, a claim for professional negligence against an insurance producer for failure to obtain needed coverage—and is going to need the assistance of a qualified expert witness to address the existence and terms of certain legal duties, standards of practice, or standards of care that may or may not apply in the circumstances under New York law.
That an attorney would need and want expert testimony in support of his or her client's side of such a case is not at all surprising. Nor is it unreasonable on the face of it for an attorney to conclude that a few discrete inquiries among the networked professionals on LinkedIn might lead to a source of such expertise. Discretion, however, is not much in evidence here, even if we disregard the unseemly spectacle of a dozen or so self-styled experts—each of whom may in truth be, for all I know, fully qualified to respond to the question at hand—weighing in with the social network equivalent of "Me! Me! Oh, please pick me!"
I see the potential for trouble, both for the inquiring attorney and for any responsive expert.
While a topical LinkedIn Group is not an entirely public forum, the barriers to entry to a Group are far from insurmountable. When a lawyer announces openly in a LinkedIn Group a search for a consultant or expert to work on a pending case, it is reasonable to assume that that announcement can and will be seen by the opposing party or opposing counsel, or by a consultant or expert who may at some point, perhaps already, be working with opposing counsel on the same case. To post this sort of question to LinkedIn is to tip your hand in at least a modest way. How significant the revelation may be will vary according to the circumstances of the case, obviously, but it is hardly difficult to imagine a situation in which the knowledge that a party has not yet located a necessary witness would be knowledge of real value to "the other side." When you beat the bushes in public you reveal something of your bush-beating technique, which is exactly the sort of revelation of tactical or strategic thinking—aka that cherished resource, "attorney work-product"—that most legal professionals are anxious to avoid.
A potentially more substantial problem stems from the way in which this particular inquiry has been phrased. The attorney essentially says flat out that the object of the search is not an expert to consult or advise generally on a subject, i.e., "standards for agents of direct writers." Rather, as phrased, the attorney announces a search for an expert who will commit in advance to stating a particular opinion, i.e., "the standard for agents of direct writers is [as stated by the attorney]." The standard articulated by the attorney may, in truth, be the applicable standard in New York; the method by which the opinion has been solicited, however, potentially compromises the credibility of any expert who takes the stand to describe it.
Expert witnesses are constantly accused, in depositions and at trial, of being mere "hired guns" whose opinions should be disregarded because they are "bought and paid for." Expert witnesses are always under scrutiny by opposing counsel concerning the manner in which they came to be selected and hired. Framing the search for an expert as has been done in this LinkedIn discussion makes the "hired gun" argument that much easier for opposing counsel to advance, by providing what may be perceived as direct evidence that whichever expert ultimately ventures the relevant opinion should perhaps not to be trusted by the trier of fact.
With an expert witness, credibility is everything. An expert's opinion testimony is only as persuasive and only as valuable the expert's explanation of the reasons for holding that opinion. A jury or a judge needs to be persuaded that the expert's opinions are reliable because the expert genuinely holds those opinions and has come to them by a reasoned and articulable process. The entire structure of expert witness credibility collapses when it can be demonstrated, or at least made to appear, that the expert was retained to parrot opinions dictated by counsel, to be as it were a mere "mouthpiece's mouthpiece."
We can leave to another day the ethical questions suggested by an expert who leaps too happily to answering an inquiry framed as this one has been. A reputation for "saying what the attorney wants to hear" may be advantageous in the short term, but it does nothing to enhance the reputation of a witness for true expertise. Moreover, a willingness to promise to provide a specific opinion even before learning the particular facts of the case to which that opinion applies shows a cavalier attitude at best, and may suggest a mercenary willingness to Say Anything for the sake of a fee.
The value of confidentiality in selection and consultation with experts is reflected in the practice in most jurisdictions of not permitting inquiry into the identities or qualifications of the parties' respective expert witnesses until the latest stages of the litigation, immediately prior to trial. In an adversary system, the Other must always be assumed to be watching, waiting to spot and to seize any advantage; information concerning the opponent's selection of an expert may provide that advantage. Hunting for expert assistance in litigation is therefore typically best done under as much cover as possible. Shouting an invitation to the hawkers of expertise in the electronic bazaar that is LinkedIn might work out for the best in any given case, but it seems a risky and unnecessarily exposed way of going about an important and already delicate task.
Photo: Sheet music cover of "They Didn't Believe Me", from The Girl from Utah (1914), via Wikimedia Commons.