Expert witness, switching sides 8

[glass99]

If you are an expert witness in a litigation matter, would it be considered to be unethical to switch sides and provide testimony on behalf of the opposing party? Let's say the following is true:
- You have completed a technical report for one side of the dispute, but do not have access to any privileged information.
- Your current client effectively saying they will fire you if you present facts unhelpful to their case
- You do not believe in your current client is in the right, and have information (currently suppressed) that would substantially help the opposing party

As an expert we have a duty to the court and not to our clients, so if the truth is presently being suppressed perhaps the most ethical thing the expert could do would be to switch sides.

Obviously switching sides would piss people off so I would generally not do it simply because it's bad for business. But is it unethical or illegal to do so?

 

[JAE]

@JAE, doesn't the code require you to reveal public safety issues, irrespective of contractual requirements?
Conversely, doesn't the law forbid contracts that require you to break the law, i.e., to violate the code's ethical requirement for protecting public safety?

The ethics code does indeed require me to notify the public (or appropriate authorities) if there's a safety issue.
But the OP didn't state that there was a safety issue...just a lawsuit between parties. I agree with you on that and your second statement.

In my experience the attorneys never explicitly push you to say anything, but they do ask (verbally) before they engage you what your opinions are on the topic at hand.

My experience is the same.

If your testimony really is neutral, why would you go to the extent of violating a judge's order to testify?

My understanding of the ethics code for engineers is that no matter who tells you to "do this" or "do that" if you have to violate the ethics code in response then you are supposed to take the hits and obey the ethics code.

 

[CWB1]

As an expert we have a duty to the court and not to our clients, so if the truth is presently being suppressed perhaps the most ethical thing the expert could do would be to switch sides.

That would be neither ethical nor legal. The client paid you to complete any required testing, analysis, and create a report. They're welcome to use, ignore, or delete their property as they wish. You can only present the report to them and if they choose to continue paying you, to the court. The opposition cant hire you bc that would be a conflict of interest. They also cant subpoena your testimony or report bc its an immaterial ex post facto evaluation, they have to gather facts and have their own expert do the work.

 

[gte447f]

Glass99, in my opinion, switching sides is unethical. The rules in my state and/or some code of ethics or other (I can't remember which/where off the top of my head) prohibit taking a fee from more than one client on the same project, unless the it is made known to all parties and they all consent. Certainly your original client will not consent to you flipping sides.

 

[dik]

I've been fortunate. None of my reports I've prepared have been 'tailor made'. Simply observations and an engineering opinion based on this. I've never been asked to provide a draft (for final); I'm not sure how I would handle that except maybe provide a draft for any comments with the information that the published report would be available in a week or two. My reports are generally 'stand alone', and can be used by either party. If I cannot offer an opinion, I'll simply explain to the client that I cannot, and/or indicate that I might with additional testing. There is no shenanigans... I'm comfortable with that.

CWB1... I think the duty is to the court, not the client. I think you can get into some interesting problems if you do otherwise.




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So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[IRstuff]

prohibit taking a fee from more than one client on the same project

Seems like that depends on what "same" means. If one "project" was a report and testimony, but one was fired before testifying, then actually testifying for the other side isn't necessarily a conflict, since, presumably, the first party wouldn't actually have paid for, and received testimony. So it would seem to be two "projects" and you get paid by one party for the report, and the second party paid for the testimony.

TTFN (ta ta for now)
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[gte447f]

IRStuff, they wouldn't have to "fire" you. There is no reason to. If they don't think your opinion helps there case, they simply don't call you as a witness to testify in court. Taking a fee from the the other party is a clear and obvious conflict of interest and ethical violation.

 

[gte447f]

Glass99, you say that you don't have privileged information, but you have information that would be helpful to the other side. And how do you have this information and the other side doesn't? Surely it is a result of your relationship with your client, no? It may not be privileged information, but surely it is confidential, no? If your client knew you would flip and go to work for their opponent, would they have shared the information with you? Come on, this is too obvious. This is obviously unethical.

And even as an expert witness, you still have a duty as a licensed engineer to act as an advocate for your client. There is no duty to the court that trumps your duty to act as an advocate for your client. I am not suggesting that you lie or alter your opinion or findings at the whims of your client; of course you have to remain unbiased and tell the truth, but you still must be an advocate for your client. Certainly, running to the other side is not being an advocate for your client.

I am not trying to judge you or be harsh. This issue can be tricky, but they are important.

 

[IRstuff]

but surely it is confidential, no?

If it was confidential, they would have, or should have, been required to sign an NDA, which is the legal backstop for preventing switching of sides.

TTFN (ta ta for now)
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[dik]

I've only had one NDA and that was for another reason. I'm not sure how I would handle an NDA request for an engineering report. Likely chat with a lawyer. If the report has information that is germane to the subject, but may not be +ve; I don't think I'd like it to be 'hidden'. I'm kinda quirky that way.

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So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[gte447f]

Ladies and Gents, if you don't understand that confidentiality is a baseline expectation when providing consulting services in matters relating to litigation in a court of law, then I don't know what to tell you. You shouldn't need an NDA to tell you that. But, I'm sure any service agreement for expert witness services most definitely has a confidentiality clause included (AKA, an NDA).

 

[dik]

There's a difference between an NDA and confidentiality. I suspect NDAs are used to hide/obscure potential issues.

-----*****-----
So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[gte447f]

An NDA is basically just a contract specifically drafted to address the single issue of confidentiality. Any other contract, like a standard service agreement and certainly a service agreement tailored for expert witness services, can also contain clauses that address confidentiality.

 

[CWB1]

An important distinction to note is that the OP is doing a forensic investigation after the fact rather than the engineering/work that caused the lawsuit. Forensic work is immaterial (not critical) to the court as anybody qualified can independently reproduce the work and it doesnt change the facts driving the case. An expert witness switching sides could also be prejudicial against the customer by giving the appearance of no-faith/guilt regardless of the facts, hence one of several reasons its a conflict of interest. No reasonable judge would allow this without the customer's permission nor allow the OP to be subpoenaed, they'd simply tell opposing counsel to hire their own expert.

Moreover, any reports/testing/analysis completed is property of the customer, not the OP. Sharing any of it without the customer's approval isn't legal. Outside of court the cost of litigation often protects sketchy practices but in-court judges tend to take a very dim view on vigilantism and other attempts to influence rulings.

And FWIW, there's no duty to the court. Duty to the customer stems from the contract-law requirement to provide a basic standard of care. The court isnt a paying customer so the only requirement is to be honest and appear/answer when requested, which won't happen unless the customer allows it.

 

[glass99]

@gfe447f Expert witnesses are witnesses just like someone who saw a murder. If we distort the truth it is perjury. We are not advocates or lawyers. Which is confusing bc the day to day reality is that we do get enmeshed in the advocacy of our clients with all the meetings with attorneys and building a technical case etc. A lot of experts become real sellouts, which is sad in my mind.

Also, I do not agree that we owe our clients confidentiality by default. I know that in my practice NDA’s are heavily overused and actually harm project progress. Researching means and methods is however part of the base service which requires that we speak to suppliers, which is much harder to do if we are NDA’d. It’s especially annoying when we are working on a typical construction project like a museum or office building. They ultimately want the word out anyway, and hobbling us now is quite counterproductive.

 

[dik]

I don't know in your jurisdiction, but here, there is a significant difference. An expert witness can offer observations with a really big difference. Here an expert witness can offer an opinion, in addition to observations. A normal witness cannot.

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So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[dik]

Maybe in your jurisdiction, but not common here. An expert witness, in these environments, is providing information to the court.

It may be a little oversimplified, but this approach keeps it uncluttered.

This can be challenged by 'other expert witnesses' and defended. The judge (or jury) makes their determination on their understanding of this information.

-----*****-----
So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[gte447f]

glass99, expert witnesses are not like fact witness. Fact witnesses are generally not permitted to testify to their opinions, only to their direct knowledge of facts relevant to the case. Expert witnesses are permitted to testify to their opinion about facts of the case as they have been presented to the expert witness. Expert witnesses generally don't have any direct knowledge of facts relevant to the case, except as those facts have been presented to the expert. Fact witnesses and expert witnesses are treated quite differently. And, expert witnesses are entitled to reasonable compensation for providing their opinion. Fact witnesses are not entitled to compensation other than a modest daily appearance fee (i.e., in my state $25/day).

I agree that if we lie under oath it is perjury, and if we bias our opinions it is unethical, but I have not said that we should do these things. That is not what it means to act as an advocate for your client. We do have to act as an advocate for our client. Engineering laws and rules in my state and certainly various codes of ethics require that we do that. Being hired as an expert witness does not change our duty to act as an advocate for our client.

I'm not sure if we owe our clients confidentiality by default, but I think it is good business practice. In the case of acting as an expert witness I think their should be an heightened expectation of confidentiality, and if a contract is signed, I can't imagine it not addressing the issue of confidentiality. I perform expert witness services, and my own contract has a confidentiality clause that says, in essence, I have an obligation to maintain confidentiality with respect to information received, work performed, and opinions formed, and that I agree to communicate only with my client, my client's counsel, and others involved in the interest of my client, and only at the direction of my client or my client's counsel.

 

[dik]

In reports, I've often included observations 'by others', explaining that the observations are consistent or inconsistent with my own.

-----*****-----
So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[LittleInch]

Glass99,

My reading of all the above is that you seem to have taken the effective firing of you too much to heart and IMHO are just digging yourself a big hole that has the potential to collapse on you with no support or shoring going on here.

Don't really know why but if I was you I would just stick to your opinion. If the client doesn't like it that's his problem and walk away. So long as he pays you and doesn't libel you in any way just chalk it off and clearly don't expect any repeat business.

Or have I read this wrong?

Remember - More details = better answers
Also: If you get a response it's polite to respond to it.

 

[dik]

Depending on the circumstances, that can be very problematic for the person who did the hiring... if it were to come out in disclosure...

-----*****-----
So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik