Charles C. Fischer is a Professor in and the Chair of the Department of Economics, Finance, and Banking, Pittsburg State University. He is also the Editor-in-Chief of the Journal of Managerial Issues.

In the wake of recent high-profile criminal cases critically involving forensic investigation and testimony, like the O. J. Simpson case, concerns regarding the credibility, competence, and ethics of forensic experts have been voiced by analysts and the media. Are forensic experts merely "hired guns?" This article explores this question with respect to one important area of forensics, namely economics. [This article draws from and builds upon related works by Fischer 1987, 1991, 1992, 1993.] The ethics of forensic economics has been subject to critical attack within the profession itself. [e.g., Berg 1987, Havilresky 1989, Fox 1991, Johnson 1995, Depperschmidt 1994]

Given the entrepreneurial nature of forensic economics, a market perspective is taken in this study. The ethics of forensic economics is examined in terms of qualitative market failure. First, the notion of ethical behavior is explored as it applies to forensic economics. This is followed by an examination of qualitative market performance in forensic economics. From this examination, the ethics of forensic economics is evaluated. The article closes with some proposals aimed at strengthening the ethical performance of forensic economics.

The Ethics of Forensic Economics

Ethical behavior, regardless of the realm of application, concerns the moral precepts of a particular culture. [Kanne, 1988] For example, in our culture ethical behavior may be cast in terms of "serving the public interest." [Purcell, 198] From a religious perspective, there is the concept of "do unto others...." [Purcell, 1982] Such cultural and/or religious connotations of ethical behavior have intuitive appeal but lack operational robustness in a competitive market environment. However, an operational concept of ethical behavior is problematic since disagreement exists over what constitutes ideal ethical behavior in a particular situation. [McKee, 1979 and 1987] In an attempt to resolve this problem, an ethical code of conduct may be prescribed. [Jamal and Bowie, 1995] For example, there is the Rotary Club's "four way test of the things we think, do or say" [Hattwick, 1985]: (1) Is it the truth?, (2) Is it fair to all concerned?, (3) Will it build good will and better friendships?, and (4) Will it be beneficial to all concerned?

Forensic associations have taken such an approach by adopting a code of ethical conduct for their members. The American College of Forensic Examiners [1995] has adopted the following code:

To remain totally objective and use my ability so that justice is served by accurate determination of the facts involved.

To thoroughly examine and analyze the evidence in a case, to conduct examinations based on established scientific principles and render opinions having a basis that is demonstratively reasonable.

Not to intentionally withhold or omit any findings or opinions discovered during a forensic examination that would cause the facts of a case to be misinterpreted or distorted.

Never to misrepresent my credentials, education, training, experience, or membership status.

To be forever vigilant of the importance of my role and conduct myself only in the most professional manner at all times.

• Ease of Supplier Entry

  Competition is essential to qualitative market performance, and the ability of suppliers to enter (or exit) the market is essential to competition. Producers are not always free to enter a market because of market barriers. Common barriers are economies of scale and/or scope, supplier control of essential inputs, predatory or entry-limit pricing, product differentiation, sales and brand promotion (e.g., brand proliferation), accessibility of financial capital, specialized knowledge, and collusion. [Daniel, 1984]

  Entry barriers are not significant in forensic economics. The market is easily accessed by individual forensic entrepreneurs. [Sattler 1991, Johnson 1991a, Adams, Brookshire and Slesnik, Tinari 1993] Though forensic economics is a highly technical discipline, not even specialized knowledge acts as an effective barrier to entry. Any individual, regardless of education or training, may promote him/herself as a forensic economist. Professional associations in forensic economics (e.g., National Association of Forensic Economics, American Academy of Economic and Financial Experts) neither regulate supply nor certify those wishing to practice the trade. It is a free market on the supply side.

  Free entry is an important element of quality competition, but, ironically, in and of itself it can be a threat to quality. Those who argue for professional control mechanisms point to ease of entry as a problem--since anyone can easily set up shop as a forensic economist, there is little quality control. [Piette, 1991] The legitimacy of this concern should be evaluated in the context of the other key determinants of qualitative market performance. What about the demand side, that is consumer choice?

• Consumer Choice

  In a market of free consumer choice, consumers have open access to suppliers. Consumer choice is not restricted by consumer characteristics (e.g., race, gender, age) and/or consumer-supplier relationships (e.g., trade membership). What is required by the consumer is the financial means to purchase the good or service.

  Consumers have considerable free choice in the market for forensic economists. Lawyers and their clients may shop among alternative forensic economists and choose the one they desire. However, perfect access does not exist since the desired expert may turn the case down for a variety of reasons (e.g., heavy case load, doubts the integrity of the case). This is of negligible significance in most cases because the market is national, or even international, in scope. [Parkman, 1987]

  Consumer free choice is the complement of supplier free entry in ensuring qualitative competition. Together, they mean that consumers have the option of freely choosing from a wide variety of suppliers, and a relatively large number of suppliers are placed in competition with each other for consumers. The quality of the good or service produced is an element of this competition.

• Buyer-Seller Relationship

  Related to the issue of consumer choice (access to suppliers), is the nature of the buyer-seller relationship. Qualitative market performance depends in part on the existence of an "arms length" relationship between the supply and demand sides of the market. In an arms length relationship, there is no vested interest in the other side's position. [Bowers and DeCenzo, 1992]

  In forensic economics, the legal process fosters an arms length buyer-seller relationship. This relationship is subject to rigorous scrutiny by opposing counsel (unlike many business transactions). The credibility of the expert-client relationship depends on being able to demonstrate that it is arms length in nature. For example, an expert whose fee is contingent on the size of the award or who is representing his/her spouse would have little if any credibility in court.

  However, there are more subtle ways to subvert an arms length relationship, which are not so apparent. Consider the case of the forensic economist who manipulates his/her opinion to favor the plaintiff. This behavior, which is openly condemned by the American Association of Forensic Economics, may be used by the expert to negotiate a higher fee for his/her services. In this case, the expert is selling not only expertise, but "him/herself."

  Will the market for forensic economists effectively police such unethical behavior? It depends largely on the quality of information competition.

• Information Competition

  Economists sometimes posit perfect information in perfect markets, but, of course, that is only a theoretical ideal. Not only is perfect information unattainable, it is not economically rational. Stigler [1961, 1987] points out that optimal information (where marginal benefits equal marginal costs) falls short of perfect information. Gomez-Ibanez [1990, 33] casts the issue in practical terms: "It is impossible and unnecessary for consumers and producers to be perfectly informed about all the characteristics of a good or service, but the market will work reasonably well if both have a similar, though imperfect, level of information."

  How well does the market for forensic economists meet this criterion? The answer is, in short, not well. Information competition is problematic in forensics in general, but it is particularly troublesome in forensic economics. There exists an information asymmetry in forensic economics, which results in the quality of forensic services not being rigorously tested. For comparative purposes, consider the presentation of forensic evidence in the recent O. J. Simpson case. Each side throughly presented forensics regarding the merit of its own position and the weaknesses of opposing council's. Though confusing at times, there was robust expert information competition. This rarely happens in forensic economics, especially when liability is uncertain. [Ireland, 1991]

  Defense lawyers do not like to employ forensic economists to oppose the plaintiff's expert in court. To do so would mean having to come up with their own assessment of economic damages, which may imply liability in the eyes of the judge and jury. Defense economic assessment gives some credibility to the plaintiff's charge of economic damages. But, even when liability is certain, it may not be a good idea for the defense to offer a damages report. [Ireland, 1991] It can be a no-win situation. If estimated damages by the defense are unrealistically low, credibility is lost. But, if the damages are realistic, then there is the risk of establishing a monetary floor for the judge and jury. It is unlikely the jury would go below the defense's own floor, and it is quite possible that the jury would go above the floor by splitting the difference between opposing loss estimates. For these reasons, plaintiff economic experts usually present their case in court without direct opposition by opposing economic experts.

  There will, however, be some type of scrutiny by the defense. The defense lawyer will likely employ an economic expert to critique plaintiff's economic expert report behind the scenes. The defense lawyer then uses this critique in his/her cross-examination of the plaintiff's expert in court. However, this usually does not result in robust information competition. It tends to be a one-side battle, favoring the expert. [Belli, 1982] It is impossible for the defense attorney to properly prepare--anticipate the possible different directions that may be taken by the expert--and to be as knowledgeable as the expert. (The author was told by a highly successful defense lawyer that "he never has been able to 'nail' an economist in court.") Even when the defense lawyer is able to hold his/her own with the plaintiff's economic expert, the expert is likely to have more credibility with the judge and the jury, since, unlike the defense lawyer, his/her fee (usually) is not contingent on the outcome.

  The critical weak link in the qualitative response of the market for forensic economists is inadequate information competition. The unique (asymmetrical) nature of expert testimony in forensic economics compromises the qualitative performance of the market. This has raised concerns about the ethics of forensic economics. [Fox 1991, Carlson 1986]

  In the next section we set forth some proposals for remedying this problem. Before doing this, let us pause a moment and play "devil's advocate." Is this a problem worthy of such attention and, relatedly, are not most markets plagued by information asymmetry? Why focus on forensic economics?

  Certainly, informational asymmetry is widespread, as evidenced in such markets as real estate, used cars, and financial. Here, the seller has the "inside track" on information. Yet the market for forensic economics is particularly vulnerable to this problem. In forensic economic litigation the jury is limited to inside information--that which is provided in court and mainly by the plaintiff's economic expert. The jury must make judgments regarding complex economic issues. They come to the jury process as naive participants (i.e., no prior knowledge of the case or the methods of forensic economics) and with no training in economic reasoning. In this setting, the plaintiff's economic expert uses his/her monopoly power over information to build the case for economic damages. A good case, along with some convincing emotional appeal by the plaintiff's lawyer, can and often does result in very large economic damage awards.

  In contrast, other markets usually are not dependent on inside information; rather they combine outside and inside information. For example, if one does not know anything about cars in general and/or the desired used car in particular, he/she can have an independent garage assess the car in question. Likewise, home buyers can hire independent inspectors and appraisers, and mutual fund investors can hire the services of an independent financial counselor. Alternatively, one can take the time and effort to "educate" him/herself to become somewhat of an expert. This may not lead to information equality, but it can greatly reduce seller monopoly power over information.

  The jury in forensic economic litigation has no outside informational alternatives available under the current system. It is a naive captive of the economic expert.

  The market for forensic economics seems deserving of special attention due to both the size of the awards at stake and the uniqueness of its information asymmetry. It is of no small consequence that we all pay for the former, in one way or another.

In this section, we look at ways ethicality may be addressed from a market perspective. The goal is to improve the qualitative/ethical performance of the market via market policies. But, it should be noted that some favor nonmarket approaches instead. [Johnson, 1991a and 1991b] The two most common are: (1) professional certification, and (2) enforcement of an ethical code of behavior. [Bayles, 1989] These are natural complements in that the goal of professional certification is to set and promote professional qualitative standards, which, in turn, begs the enforcement issue.

The reason for taking a market approach here is essentially twofold. One, as mentioned above, current (preliminary) evidence suggests strong resistance to institutional intervention by forensic economists in this country. [Brookshire and Slesnick, 1991] Second, market approaches have the appeal of treating the problem itself (while institutional responses tend to be more symptom oriented), and being self-enforcing via the discipline of the market. Critics, however, argue that markets are incapable of satisfactorily addressing ethical issues, and that direct institutional intervention is called for. [e.g., Johnson 1991a and 1991b] While this important debate is beyond the scope of this article and will not be settled soon, it seems safe to conclude that market policies will remain an important part of the search for improving the ethicality of forensic economics.

Two market approaches are set forth below, namely restructuring the trial process and third-party assistance. Both are aimed at enhancing the qualitative performance of the market in terms of an ethical code of conduct.

• Restructuring Trial Process

  Recall that the main source of inadequate information competition in forensic economics is the actual trial process, which inhibits the use of defense economic experts in courts. Thus, one possible solution is to change the trial process in ways that would promote economic information competition. Presently, the plaintiff's economic expert has a near monopoly position in court. Recall that this stems largely from the vulnerability of defense lawyers on legal liability. This might be resolved by adopting a trial process that separates the issue of liability from the determination of economic damages. This is not as far-fetched as it might seem, for a similar approach is used in some civil antitrust cases. In cases involving charges of producer predatory pricing, often the trial process involves two distinct phases: (1) market structure analysis to determine the potential for monopoly practices, and (2) if it is judged that sufficient monopoly power exists, presentation of evidence and arguments as to whether the alleged monopoly practice(s) actually took place. [Wall 1989, Kamerschen 1994]

  This may hold promise for forensic economics. For example, consider a similar two-phased approach in personal injury and wrongful death cases. Phase one could consist of determining liability. If liability is found, then the trial would move on to the second phase where economic damages are determined. Since liability is no longer at issue, defense lawyers would presumably be more inclined to use an economic expert in court. Hopefully, the judge and jury would benefit from a two-sided debate on the merits of economic damages.

  However, even with this restructuring, the playing field would still tend to favor the plaintiff due to the reluctance of defense attorneys to establish an economic floor for the judge and jury (as noted earlier). As such, restructuring the trial process so as to isolate liability from economic damage assessment is only, at best, a partial remedy. Additional measures would likely be needed. Also, there is the problem that such restructuring would be strongly resisted by conservative legal institutions (e.g., law schools and lawyer professional associations) and, naturally, defense attorneys, who presently enjoy a near monopoly advantage in economic testimony. [see Colella, Johnson and Tinari, 1995]

• Third-Party Assistance

  Less intrusive and threatening to existing institutions is third-party assistance aimed at fostering better economic information. One approach would be to employ a neutral (court appointed) economic expert to help educate the judge and the jury on the relevant economic issues of the case. [Belli 1982, Fox 1991] A neutral would presumably provide a more balanced picture of relevant economic evidence than would opposing experts. But, no single approach is failsafe.

  What would guarantee that the neutral was both competent and ethical? And, even assuming the best-case scenario of competence and ethicality, true neutrality may be unattainable. Forensic economics is part science and part art. Rarely is there a best methodology for estimating economic damages. Certainly, choice of methodology may be affected by the training and background of the forensic economist. [Brookshire and Slesnik, 1993] Consider the diverse, and sometimes conflicting, schools of thought in economics (from the narrow confines of homo economicus to the much broader models of socio-politico-economy).

  Court-appointed neutrals are no panacea for inadequate information competition. Nonetheless, imperfect neutrals may be an improvement over the present monopoly power of plaintiff lawyers.

  A second and complementary form of third-party assistance is to provide better information outside the trial process to those involved in economic forensics. For example, lawyers and experts could be better educated on issues of ethicality in forensic economics. Professional associations have an important role to play here. Ethical standards should be established and made known to the parties. This has been done by some forensic associations (as discussed at the beginning of this article). It is noteworthy that the American Association of Forensic Examiners requires individuals to pass a rigorous test on ethical standards in order to become Board certified. (These questions are based on complex ethical scenarios, and are not available for public dissemination.) Forensic economic associations might pursue similar "sensitivity" activities to cultivate ethical awareness among their members.

  Similarly, defense attorneys may be better educated on their strategic role in economic damage cases. [Malone 1988, Parkman 1987, Spizman 1995] Defense economists can play a direct role with respect to preparing defense attorneys to successfully cross-examine plaintiff economists. At a broader level, professional associations in forensic economics can help educate regional and national defense council organizations on the role of the defense in forensic economics. Academic and practitioner journals sponsored by these associations (e.g., Journal of Legal Economics, Journal of Forensic Economics, Litigation Economics Digest) can provide a useful forum for new research and debate on this issue.

  These strategies for improving information and educating the parties, along with restructuring the trial process, offer ways to improve the qualitative/ethical performance of the market for forensic economists without controlling the market. These are not offered as solutions, but rather as fuel for this important debate.

The integrity of forensic economics is an important issue for forensic economists, the parties at dispute, and society at large. The credibility of any area of forensics is critically linked to its ethicality. If forensic experts are commonly viewed as "hired guns," then their testimony in court will have little impact on the outcome and will be seen as nothing more than a charade. This would be tragic, for critical forensic evidence would be lost in the trial process.

The parties involved also have a big stake in the integrity of forensics. Economic damages awarded by the courts can run in the millions of dollars and thus dramatically affect the financial interests of the parties. Unethical behavior compromises those interests.

Finally, society must be concerned with the ethicality of the profession, for often it is the general consumer and/or taxpayer who pays for inflated economic awards. A dramatic example of this problem relates to the recent sharp increase in wrongful death awards under hedonic damage methodologies. [see 1991, Havrilesky 1995] Usually, these awards are paid for via increased insurance premiums (e.g., auto, medical malpractice). Here innocent third-parties pay the bill for inflated economic damages. (This is not to suggest that all who use hedonic damages are unethical, but rather that hedonic damage awards have provided much opportunity for unethical, inflated economic awards and some experts appear to have seized that opportunity.)

In this article, we approached these issues by examining the qualitative/ethical performance of the market for forensic economists. We then identified the market's weak link, namely information competition, and proposed ways to remedy/reduce the information problem via the market mechanism. Emphasis was placed on restructuring the trial process so as to better facilitate the use of defense economic experts, providing better economic information to the parties, and educating the parties so that they can better utilize this information.

It is important to note that only corrective market proposals were examined in this article. As mentioned above, some favor institutional approaches, such as professional certification. The author, along with most economists, views such approaches as risking a case of the "cure" being worse than the "disease." Both economic theory and experience show that such barriers to entry, while done under the guise of protecting consumers, usually benefit suppliers by enhancing their monopoly power. The result in forensic economics would probably be to raise the economic rents of "qualified" forensic economists, but would not likely increase their ethicality. Market restructuring, while no panacea, seems best for improving the ethicality of forensic economics.

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