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?

 

[dik]

I should have added that I usually provide the lawyer with a couple of pages of questions to consider and add to them as the case goes on...

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

-Dik

 

[glass99]

@gfe +dik: yes you are right that experts have opinions. The reason I compared us to murder witnesses is to emphasize our duty to the court rather than our clients.

@LittleInch: I have never been fired. The reason I am kind of animated on this topic is the bullying I witness by well funded clients against smaller fish. If you have enough money you pay an expert to crawl all over a project and nit pick everything that becomes very expensive to rebut or even understand by a relatively lay arbiter. To me it becomes unethical especially for the big firms to offer this kind of service because it veers into advocacy. I am not talking about any one project btw.

 

[dik]

Concur...

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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]

You folks are killing me with all this "duty to the court" business. There is no duty to the court other than to tell the truth under oath. It is not the duty of an expert witness to see that justice, as they see it, is served.

From the rules in my state:

"The engineer or land surveyor, when serving as an expert or technical witness before any court, commission, or other tribunal, shall express an opinion only when it is founded upon adequate knowledge of the facts at issue. That expression shall reflect a background of technical competence in the subject matter, and an honest conviction of the accuracy and propriety of his/her testimony."

 

[dik]

I guess we can disagree...

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

-Dik

 

[gte447f]

Also, from the rules in my state:

"The engineer or land surveyor shall not accept compensation, financial or otherwise, from more than one party for services on the same project or for services pertaining to the same project unless the circumstances are fully disclosed to and agreed to by all interested parties."

As I said upthread, according to this rule in my state, flipping sides would be an obvious conflict of interest unless agreed to by all parties, which would never happen.

It is also obvious that being "fired" by one party doesn't release you to go work for another party, because it would still be "services pertaining to the same project".

 

[LittleInch]

with gte here.

I just don't get this "duty to the court" business for civil cases where you have been appointed by one party to a civil suit to provide evidence to the court for them to determine fault or level of compensation due from one party to the other. Clearly the party employing you will want to present the best case they can and I guess your issue is that this party wants things removed from your written submission to make the case "better" and not provide "ammunition" to the other side. Is that your issue?

Now in your post above you believe that this is predatory or bullying of a larger, more powerful company over smaller ones who presumably cannot afford their own expert witness?? It is though open to the other side to have an expert witness who should then be able to determine the same things you found.

Whilst I admire your feelings towards the smaller party, equally you don't have to work for them. You could choose to work for the smaller company, presumably at lower cost. What is unethical, IMHO, is switching sides based on feelings. Only if the original party retrospectively amended your report or cut things out that you have submitted to them would or could you have a leg to stand on here.

Many such disputes are settled by arbitration where a jointly appointed expert is appointed who is a quasi judge in this, providing a balanced view of the dispute on the technical issues before the arbitrator.

Really not sure where this thread is going at the moment or even which point we are actually debating....

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

 

[glass99]

@LittleInch: It is my foundational belief that the world would be a better place if it was run by engineers rather than lawyers. If our clients ask us to support some BS accusation with technical mumbo jumbo so they can kick the crap out of their ex-friends, we should say "hell no". I have been told by an attorney I work with that the best experts do push back on the excesses of their clients, and enjoy greater credibility with all concerned as a result. It is clear there are ethics rules preventing taking money from two parties and sharing privileged information, but those prohibitions are circumscribed in scope.

I think everyone here has a commitment to objectivity, even if we disagree a little on the importance of being non-partisan. I appreciate all the thoughtful responses.

 

[phamENG]

Perhaps the "duty to the court" is really a duty to the truth? We have a duty to objectively present our opinions free of bias. Full stop. It is the court's job to see justice done, not ours. We simply play our circumscribed part in the process.

If a client is trying to bully you into saying something that you disagree with, you should fire your client before they ever get a chance to fire you. If they don't like your report and choose not to use it, that is their prerogative. Expert reports are typically protected from discovery, so the other side doesn't get access to it.

What we do have a duty to is public safety. If you find out that your client did something that has resulted in a severe safety issue - like if they don't drain the rooftop pool and repair it the rebar will corrode and the roof level of that building will collapse and pancake the structure in 4 years - yeah, it needs to be reported whether that was privileged information or not. But if it doesn't create an imminent threat to public safety, then you keep it to yourself.

 

[gte447f]

phamENG, one clarification concerning expert reports. If an expert witness will be called to testify in court, then the expert witness is required to prepare and submit an expert report that follows certain formatting guidelines, and the expert's identity and a copy of their expert report has to be disclosed to and made available to the other side during discovery. This is federal law per the federal rules of civil procedure, so it applies to federal courts and many other courts that adopt the federal rules of civil procedure or have their own rules that are very similar to the federal rules. Expert witnesses that will not be called to testify, are referred to as consulting experts, and they do not have to prepare a report and their identities do not have to be disclosed to the other side during discovery.

 

[dik]

Not my experience... the report is provided long before testifying. In addition, I've never been asked to provide a report to follow a certain format.

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

-Dik

 

[phamENG]

gte - I agree. I was referring specifically to the case in the OP where they will not be called to testify. In that case, they would be a consulting expert. Thanks for clarifying it.

 

[SLTA]

Y'all should know that this site, where I asked a question about being an expert witness and procedure around that, was brought up while I was on the stand in a separate court case as an expert witness. The opposing lawyers stalked me online. It was creepy as hell.

I'd be really careful about threads like this and maybe consider deleting it if you don't want it out there to be found by the lawyers. Just my real-world experience.

Please remember: we're not all guys!

 

[dik]

sure we are... for me, it's a binary term.

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

-Dik