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.

Quote (MintJulep)

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.

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

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

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

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.

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.

https://www.nspe.org/resources/ethics/code-ethics

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

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.

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.

@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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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.

@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!

Quote (Jae)

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.

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

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

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.

Quote:

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
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@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.

Thanks LI... fixt.

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

-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

Quote (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?

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.

Quote (glass99)

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.

Quote (glass99)

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.

Quote:

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.

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.

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.

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

-Dik

Quote:

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)
I can do absolutely anything. I'm an expert! https://www.youtube.com/watch?v=BKorP55Aqvg
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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.

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.

Quote:

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)
I can do absolutely anything. I'm an expert! https://www.youtube.com/watch?v=BKorP55Aqvg
FAQ731-376: Eng-Tips.com Forum Policies forum1529: Translation Assistance for Engineers Entire Forum list http://www.eng-tips.com/forumlist.cfm

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.

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

-Dik

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).

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

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.

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.

@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.

Quote (Expert witnesses are witnesses just like someone who saw a murder.)

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.

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

-Dik

Quote (An important distinction...
...unless the customer allows it.)

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

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.

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

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.

Quote (you seem to have taken the effective firing of you too much to heart)

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

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

@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.

Quote (is to emphasize our duty to the court rather than our clients.)

Concur...

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

-Dik

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."

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

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".

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.

@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.

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.

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.

Quote (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)

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

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.

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!

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