Expert Witnessing Ethically

I have never been an expert witness in a courtroom or legal situation. But I have known engineers who have been. And sooner or later, many engineers and academics who teach engineering may get a call from a legal firm wanting to pay for their services as an expert witness. What are the ethical implications of serving as a paid expert witness? Can you both take money from only one side of a contentious legal battle and still preserve your integrity and objectivity?

Let's look at a few of the issues that might arise. To keep things concrete, so to speak, let's say you are an expert in concrete, and have been called in by the owner of a shopping mall whose sidewalks are cracking up after only two years of use. The owner is suing the contractor who poured the sidewalks. Should you accept the job, and if you do, what are your ethical obligations?

Many professional codes of ethics have a lot to say about this kind of situation. Although electrical engineers don't deal much with concrete, the Institute of Electrical and Electronics Engineers (IEEE) has a code of ethics that is representative of many engineering codes, so we will take it as an example since I'm most familiar with the code of my own professional organization.

The first item in the IEEE code that speaks to our hypothetical question says that an engineer should "undertake technological tasks for others only if qualified by training and experience, or after full disclosure of pertinent limitations." In other words, if you don't know beans about concrete and how it cures and why it would crack, you shouldn't trade on your educational qualifications in an unrelated field just to impress a jury. Some lay persons are awed by anyone who can write "Ph. D." after their name, thinking that it confers indefinite wisdom. Those of us who work around Ph. D.s every day know that except for the narrow specialization that the Ph. D. represents, people with doctorates in engineering tend to be all over the map when it comes to wisdom or judgment. And anyway, what your client is paying you for is specific technical expertise that you claim to have. If you don't have it, you've lied to your client, and anyway, the defendant's lawyer, if he's any good at all, will take you apart with great glee during cross-examination. And being humiliated in front of a crowd of people would be just deserts for claiming expertise you don't have.

Suppose you are well qualified to pass judgment on the matter at hand. The plaintiff or his attorneys will offer you a fee for your services. There is generally nothing wrong with this, because everyone understands that an expert's time is valuable and in the course of ordinary affairs, people have to pay experts for their professional time. Of course, if you feel strongly about a certain matter and want to provide pro bono services (for free), there is nothing to stop you from doing that. However, most expert witnesses are paid for their time and effort, which may be considerable in a complicated technical matter, and this is nothing you should be ashamed of.

On the other hand, if there are other connections involved that would look fishy to outsiders, and you don't disclose them, you run up against two more ethical principles covered in the IEEE code: to "reject bribery in all its forms" and to "avoid real or perceived conflicts of interest wherever possible, and to disclose them. . . ." Say for instance that you're married to the owner's daughter and stand to inherit the shopping center when the owner passes on. Most people would say that there is at least a chance that this fact will influence your professional judgment, since you stand to gain a lot more than just your fee for your testimony in that situation. At the very least, this fact should be made known to everyone, to the defendant as well as your client, the plaintiff.

Well, what if you agree to testify, set a fee, and then find that, contrary to the owner's hopes, the contractor he sued wasn't at fault? Maybe the owner made false claims to the contractor about the nature of the subsoil, and it shifted and cracked what was otherwise perfectly good concrete. All sorts of weird things like that can happen to make a case turn out to be otherwise than what it looked like in the beginning. What do you do then?

There's something you're obliged to do, and then you take whatever consequences arise from it. You have to tell the owner the results of your study, whether they're good news or bad news for him. Obviously, if your testimony isn't going to help your client, he won't be wanting you to testify. Whether or not you get paid depends on the nature of your contract with the client. The fairest thing might be just to write it off as a learning experience and not send a bill, but if you spent several weeks working on the issue, you can't afford to undertake too many projects like that. But what you should not do under any circumstances is fudge the data or your analysis to make things look better for your client than they actually are. Here's where the real temptation comes, and here is where it has to be resisted, whether it loses you your fee or not.

Besides all these matters, I have my personal opinion I'll throw in at this point. Like chili powder in soup, expert witnessing is probably best if done sparingly. The picture conveyed to juries is generally that of a busy professional who does "real work" most of the time and has undertaken to benefit the legal system with the expertise that he or she has acquired elsewhere. But expert witnessing pays well, and some are tempted to turn it into a profitable enterprise that takes up a lot of their time. This doesn't seem to me like a good idea for someone who wishes to keep a professional edge on their technical expertise. While the temptations to bend the truth can be successfully resisted if you play the witness role only once in a while, being objective for only one side in a dispute is always a strain. Most people can support the strain once in a while, but I wouldn't advise making a career out of it.

To sum up, expert witnessing can be a genuine public service that can "improve the understanding of technology, its appropriate application, and potential consequences" (another item in the IEEE code of ethics). But this kind of work is fraught with more than the usual quota of ethical hazards, and it takes judgment and wisdom to negotiate them without slipping up. And not everybody—not even those with a Ph. D.—can do it successfully.

Sources: The IEEE Code of Ethics can be found at http://www.ieee.org/portal/pages/iportals/aboutus/ethics/code.html.