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?

 

[MintJulep]

If you testify then the other side gets to cross-examine you.

It seems unlikely that you will be given the opportunity to testify.

Switching sides will almost certainly get you sued, and the outcome will answer your question about legality.

 

[glass99]

Switching sides will almost certainly get you sued

What basis would they have to sue if testimony was strictly truthful?

Opposing counsel having the opportunity to cross examine would not necessarily bring out detailed technical information that only a real subject matter expert would even think to ask. Obviously they have their own expert, but as we all know, many "experts" are not that amazing. I'm pretty sure its unethical for an attorney to pressure an expert into saying something but they are effectively allowed to lie by omission by firing the expert.

This isn't necessarily my situation right now btw, more something which has occurred to me a few times as I prep for a client.

 

[Enable]

Here's what I got for you:

1. I don't believe it's unethical

2. I don't believe it's unlawful (generally)

3. You can still be sued regardless of legality, which is a PIA, so probably wouldn't want to do it

4. Grab yourself some expert witness E&O insurance coverage for good measure

 

[phamENG]

I listened to an old webinar by Alexander Newman on this topic last month (it was an old one and I just discovered that one state where I'm licensed added an ethics requirement to the annual continuing ed rules for this year).

While he didn't specifically say that you can't, one tactic that he brought up that some attorneys use is to go out and hire as many experts as they can, preferably the best ones. They may never actually call on your services, but they lock you up so you can't work for the opposing side. That leads me to believe that there is likely a conflict of interest trap or something similar here.

And just because you haven't been exposed to privileged information doesn't mean that you can prove that. And the implication of having a contract with one side is that you had access to that information. Or so I would think, anyway.

But apparently there are ways of doing it, but beware. The consequences sound unpleasant: Expert Witness “Side Switching”: What Happens and How to Respond

 

[dik]

I've testified numerous times as an expert witness... I don't take sides. Regardless of Depending on whose side I'm on, my testimony is likely the same, or very similar.

In addition when I used to do up forensic reports, I had a standard header that stipulated who my client was and that if things were reversed, the report would be similar. In addition, I stipulated that the other side could retain their own engineer. I was always particular about this. Only one insurance company took exception to this (SF), but it stayed and I did several reports for them... and was included largely because of them.

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

-Dik

 

[LittleInch]

This is the key bit for me

"Your current client effectively saying they will fire you if you present facts unhelpful to their case"

Who is the client? The legal team or someone else?
Just make sure you keep a secure copy of the report you submitted, if you've submitted it, for disclosure if required.

So how was this communicated?
Have you done your bit of the work yet? - i.e. produced the report?
I'm not sure what the requirements on the legal side are to disclose to the other side all relevant information (regardless of it being good or bad), but if they are deliberately withholding information then I believe that's a big no-no for the legal boys and should be reported to the relevant professional body if you believe it was happening. telling the client bad news in an EW case is par for the course, but usually the legal guys take a dispassionate view of this in order to advise their client of the likelihood of success in their legal action. They are free to obtain a second EW an disregard your report, but not sure if they then still need to disclose this. The other side of course are also free to get their own EWs, who often agree in the main, but disagree about certain critical points.

It's not easy being put in such as situation and you really need to tread carefully. The problem about being a "whistle blower" is that everyone then focusses on you and your motives, not what you were actually saying.

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

 

[monkeydog]

One other thing you may want to consider is if you have signed a nondisclosure agreement with the first client. You are bound by the NDA to not release any information that may be harmful to your client. That would be a reason you would be sued. Morally right, but vulnerable for a lawsuit.

 

[stevenal]

[URL unfurl="true"]https://www.nspe.org/resources/ethics/code-ethics[/url]

See II(1)((c), II(4), III(2), I(1), and II(1) in particular.

 

[Brian Malone]

stevenal - excellent post of the code of ethics. The guidance provided helps eliminate the influence on judgement that can be caused intentionally or unintentionally by friendships, personal connections, or professional pressures.

 

[JAE]

I think stevenal's code of ethics references are on target.
Also dik's comments for sure.

I think if I were tasked with being an expert for an attorney, and the facts that I presented weren't to their liking and they dropped me, I would:
1. File my work away and go on to better things, other projects.
2. If the opposing side contacted me I would not volunteer to testify for them (citing the ethics provisions).
3. If the opposing side then subpoenaed me, compelling my testimony, I would get an attorney and appeal to the judge, again citing the provisions of the ethics code.
4. If the judge ordered me to testify, I would then have an ethical choice to take the punishment for refusal, or go ahead and testify under duress.

I'm not a legal expert so items 3 and 4 above might need to be clarified for me by my attorney.

 

[IRstuff]

@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?

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

https://www.youtube.com/watch?v=BKorP55Aqvg

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[LittleInch]

I think the really unethical thing is that your client, be it the interested party or their legal team, is (apparently) pressurizing you to alter or amend your findings. I've found that normally expert witnesses are encouraged to simply set out the facts and their unbiased opinions without amending or bending their testimony to the party paying them.

Just like Dik says ( with my strikout) "I don't take sides. Depending[Regardless] on whose side I'm on, my testimony is likely the same, or very similar."

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

 

[glass99]

@LittleInch 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. I was asked to be an expert for a developer by an attorney a few years back and I told them I thought the problem could have and should have been rectified through a simple retensioning of cables vs the wholesale replacement of the facade that they actually had already completed and wanted the contractor to pay for. I did not get the assignment! A giant fee down the toilet!

4. If the judge ordered me to testify, I would then have an ethical choice to take the punishment for refusal, or go ahead and testify under duress.

If your testimony really is neutral, why would you go to the extent of violating a judge's order to testify? You could omit anything related to privileged information. I get it from a client relationship point of view (I would do the same) but ethically it seems like withholding key information from the court is a denial of justice. What about our social contract to make the world a better more just place through engineering expertise? What if an innocent man went to jail because you refused to testify? In that situation I think that switching sides is the noble thing to do.

In many ways it's perverse that experts are retained by the parties to the dispute rather than the court.

 

[dik]

I just noticed that... I'd walk...

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

-Dik

 

[stevenal]

Under some of the sections cited above, an engineer might feel compelled to switch sides to serve the public interest or public safety. Be aware, that if litigation leads to settlement the terms will likely be confidential, leading to no public access to the report or testimony.

 

[IRstuff]

In many ways it's perverse that experts are retained by the parties to the dispute rather than the court.

The OP's post reads like a private litigation, i.e., private party vs. private party, in which case, the court has no dog in the hunt and shouldn't be forced to pay for expert witnesses where the state has no direct interest.

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

https://www.youtube.com/watch?v=BKorP55Aqvg

faq731-376 forum1529 Entire Forum list

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[glass99]

@IRStuff: yes everything we do is private parties. The way it can work is that the parties agree to hire a single expert and split the cost. The expert makes a report which is "neutral" which you then have the option of ignoring or disputing if you don't like the outcome.

 

[dik]

Thanks LI... fixt.

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

-Dik

 

[dik]

In addition... if my client had the problem, I'd inform him of the situation that he may be able to resolve the matter properly.

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

-Dik