Cleckley, Justice, concurring:
Although I agree with the majority opinion, I feel
compelled to file a concurring opinion to voice my objection to any
future expansion of the majority's holding to encompass the area of
arrangements for contingent fees for expert witnesses.
In West Virginia, "a contract to pay a witness for testifying[,] coupled with the condition that the right of compensation depends upon the result of the suit in which his testimony is used, is contrary to public policy and void for the reason that it leads to perjury and the perversion of justice." Ealy v. Shetler Ice Cream Co., 108 W. Va. 184, 189, 150 S.E. 539, 541 (1929). (Citations omitted). (See footnote 1) The impact of this rule on less affluent litigants who seek to engage expert witnesses has combined with the evolution of constitutional doctrines to require a reexamination of our "public policy."
On the civil side, we have recognized that invoking the
jurisdiction of our courts is a fundamental right. Thus, an
employee fired because he sued his employer can state a claim for
relief for retaliatory discharge. McClung v. Marion County Comm'n,
178 W. Va. 444, 360 S.E.2d 221 (1987); Cf. Webb v. Fury, 167 W. Va.
434, 282 S.E.2d 28 (1981), overruled on other grounds, Harris v.
Adkins, 189 W. Va. 465, 468, 432 S.E.2d 549, 552 (1993).
Furthermore, the State may not deny a hearing to indigent litigants
because they cannot post a double property value bond, State ex
rel. Payne v. Walden, 156 W. Va. 60, 190 S.E.2d 770 (1972), or pay
the costs of service of process by publication. Johnson, supra.
(See footnote 2)
Finally, Section 17 confers a fundamental right upon civil
litigants to represent themselves. Blair v. Maynard, 174 W. Va.
247, 324 S.E.2d 391 (1984).
Viewed collectively, our cases applying the Open Courts
Clause establish at least two guarantees:
(See footnote 3) (1) the right of civil litigants to obtain judicial hearings of their grievances free from
unnecessary obstacles or retaliation, e.g., McClung, supra;
Johnson, supra; State ex rel. Payne, supra; and (2) the right of
criminal defendants not only to trial and appeals but also to
meaningful chances for full and fair treatment. Section 17 clearly
does not confer the same benefits on civil litigants that it does
on criminal defendants. The relative interests of the two groups
are distinct, and special obligations may fairly be imposed on the
State in the criminal process. In criminal cases, unlike civil
litigation between private citizens, the State is bringing all its
power and resources to bear upon individual citizens. Therefore,
Section 17 does not impose on the State any duty to provide civil
litigants with counsel, transcripts, or expert witnesses. Section
17 does ensure, however, that the State cannot, without adequate
justification, erect obstacles to the litigants' ability to secure
a meaningful opportunity to present their cases effectively. E.g.,
Blair, supra; Johnson, supra.
Not every regulation of the civil litigation process, however, must give way to ease the litigants' burdens. The State may be able to justify reasonable burdens. When examining whether a governmentally imposed obstacle to meaningful judicial resolution of a claim can satisfy Section 17's rigorous standards, a court should consider: (1) the extent to which the regulation actually obstructs meaningful access; (2) the degree to which the prohibited conduct actually threatens important State interests; and (3) the existence of alternatives that might meet the State's legitimate concerns without imposing the obstacle.
Looking at the first of these factors, the ban on
contingent fees for experts can seriously impair the ability of
less affluent litigants to effectively present their cases.
Unquestionably, and increasingly, in our ever more complex and
technical world, litigants need the assistance of experts to
establish their claims and defenses. Equally incontrovertible is
the fact that experts are expensive. Even if a lawyer advances the
money for an expert, the ultimate obligation to pay for the expert
normally remains with the litigant. Thus, many litigants who do
not have substantial financial resources (i.e., not only the
indigent but also a sizeable portion of the great middle class)
will either be unable to hire an expert or will be dissuaded from
hiring an expert because of the potential liability for paying his
or her fee. On the other hand, if the litigants could contract
with an expert on a contingent fee basis, they know they will
either have the money to pay for the expert, through damage awards,
fee-shifting statutes, or, for defendants, from money otherwise
needed to pay a judgment, or they will not be liable to pay the
fee. As a consequence, our rule against contingent fees for
experts discriminates against the less affluent in their ability to
obtain a fair and meaningful ruling on their claims and defenses.
The discrimination becomes invidious when a person without substantial means must litigate against a well-financed opponent
who has hired an expert.
(See footnote 4)
As to the second factor, the State's interests, the State
certainly has legitimate and important interests in preventing
perjury and the perversion of justice. See Ealy, supra. As
maintained by the Second Circuit in Person v. Association of the
Bar of the City of New York, 554 F.2d 534 (2nd Cir.), cert. denied,
434 U.S. 924, 98 S. Ct. 403, 54 L.Ed.2d 282 (1977), a legislature
rationally may conclude that contingent fees for experts enhance
the likelihood that they will embellish their testimony in order to
be paid or that the contingent nature of a fee might even induce
perjury. See also, Cresswell v. Sullivan & Cromwell, 704 F. Supp.
392, 401-02 (S.D.N.Y. 1989), modified on other grounds, 922 F.2d 60
(2d Cir. 1990). Two critical factors, however, distinguish these
precedents. First, they did not consider the impact of Section 17.
For instance, the Court in Ealy did not address any constitutional
arguments against the rule. Moreover, the relevant doctrines
clearly had not developed when Ealy was decided. Likewise, Person is not dispositive because that court was bound only by the Federal
Equal Protection Clause, under which the contingent fee bar needed
to satisfy merely the rational basis standard rather than the more
rigorous scrutiny required by Section 17. Second, in this case,
there is no need for any deference to a legislative judgment. Ealy
set forth a judge-made rule, and under Sections 1 and 3 of Article
VIII of the West Virginia Constitution,
(See footnote 5) this Court has the
ultimate and unqualified responsibility for establishing the rules
for conducting litigation and for the conduct of the Bar.
While no one could question the legitimacy of preventing
perjury and perversion of the judicial process, one seriously could
question whether contingent fees for experts would, in fact, create
any greater likelihood of causing such evils than our current
system. As is presently the case, an expert is retained for
litigation only when the expert's opinion supports the position of
the engaging litigant. Thus, there is already a built-in economic
incentive for experts seeking to be engaged to shape their
testimony to fit their contractors' needs. Moreover, many experts have an ongoing (or recurrent) professional relationship with those
who hire them or have an economic interest in staying in the good
graces of their patrons.
Finally, as to the third factor, an easy alternative is
available to counter the potential for perjury, that is, courts may
allow, as they already do, opposing parties to cross-examine
experts on the nature and size of their fees, and this may be
extended to include whether their fees are contingent. Moreover,
as John H. Wigmore "consistently [has] maintained[,] . . . cross-
examination [is] indeed the best vehicle for the discovery of the
truth. See  Wigmore on Evidence, . . . § , at [32
(Chadbourn rev. 1974)]. See also State v. Thomas, 187 W. Va. 686,
[691,] 421 S.E.2d 227[, 232] (1992) ('[c]ross-examination is the
engine of truth')." 1 Franklin D. Cleckley, Handbook on Evidence
for West Virginia Lawyers § 6-6(D)(1) at 655 (3d ed. 1994). Thus,
the jury will have the information before it, and the jury can
weigh that information along with all the other evidence presented.
To be sure, some scrutiny of contingent fees for experts
must be maintained. Fees certainly must be reasonable both in the
rate of pay promised and in their relationship to the services
rendered. Thus, a percentage fee, that is a fee promising a
percentage of a plaintiff's damage award, would be inherently
unreasonable. Such regulatory measures merely emphasize, however,
that reasonable alternatives exist to meet the interest of the State in sustaining the integrity of the judicial process without
creating obstacles that impair meaningful access to that process
for the less fortunate in our State. Moreover, by preventing many
litigants from putting their best cases forward, obstacles such as
the contingent fee ban might threaten the integrity of the process
more than they protect it with their meager or illusory
contribution to encouraging honest testimony.
I am authorized to state that Justice Neely joins in this concurring opinion.
Section 3 of Article VIII states, in part: "The court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process practice and procedure, which shall have the force and effect of law."