Out of curiosity, has anyone ever been an expert witness in a trial? If so, how did it come about? What did they pay you? Have you done it more than once?
I was an expert witness once in a divorce trial. The wife was asking for half the value of the husband's design firm as part of her settlement. She had hired her own 'expert' who knew absolutely nothing about how design firms really are valued. I was the expert witness for the husband; the judge accepted my valuation; my testimony saved the husband about $300,000. I was paid my normal hourly rate for the time I spend conducting the valuation, preparing for trial, and appearing in court. I've only done this the one time. Actually, it was sorta fun.
my technical/archi-science instructor was often a witness for trials back when i was in undergrad. he used cases as examples of how not to design building envelopes and so on. actually was pretty good learning to be had...no idea what he was paid. i think being able to put on resume that he was considered expertly on the subject of building technology was big deal for him. he had business as consultant on side and that was like seal of approval...his main job was as professor in university, which is why he was approached i should think.
Why? I am about to finish my JD (one more year) and have not-too-seriously contemplated getting an m.arch--we can save this discussion for another time.
It seems like there's a decent need for expert witnesses in this area, and it would be a good way to supplement one's income. I was curious mostly about how common witness work is and how people obtain it.
you gotta be old and grizzled with lots of experience to be called up to the witness stand as an architect. The term you're looking for is 'Forensic Architect'.
The man/woman that sits in court doesn't have to be the only one doing the research. Depending on the scope of the work, it may involve a lot more people doing a lot of research/study, setting up the presentation, etc.
To become one, as TK mentioned, it takes a lot of experience and technical knowledge. I've done forensic work, but I am never the one that sits in court as I'm less experienced. I don't think a knowledge of the law would be helpful to become an expert witness, though.
I think you will find that one can become (if so inclined) an "expert witness" only after becoming a credible "expert" in something.
There are agencies where "experts" in a particular area can register - much like a speakers bureau. A quick google search should turn up several.
My impression is that fees for such work are not great - you probably can make a better living by being a genuine "expert" than as an "expert witness".
I was an expert witness in a jury trial involving a homeowner suing a contractor over some renovation work. I thought I was too green for it at first. I was called on because I was 'qualified' simply by being a licensed architect, and it was a clearcut issue so I reluctanly did it..
I got paid $300 for about 15 minutes of work which wasn't too shabby...
It seems like there might be more of a "market" for structural expert witnesses than for architectural expert witnesses because structural engineering is more objective than most things architectural. True, there will always be cases of buildings leaking, finishes degrading, and buildings just not performing how they should.
Allyn E. Kilsheimer is a practicing structural engineer here in DC who tends to be called whenever there is a major structural failure in this country. He's got years of experience with this kind of stuff. I agree with the comments above - one needs to be an expert at something first; expert witness invitations seem to come as a result. Said another way, expert witnessing seems to be a side job for those who are already practicing in their field.
smrufstomper - it sounds like you might have an interest in construction law or being a zoning attorney. Zoning is big business in downtown areas - or at least it is big business in a town (DC) that has height restrictions, historic preservation review boards, fine arts commissions, neighborhood groups, overlay districts, etc. Two firms that you might look at are:
@laquer Funny you should say that- just today I was looking into it. There's not bad money in becoming a construction official for a town... some of the one's around my parts make 100k a year...
Thanks for all the great comments. I'm not looking to become a full-time, professional expert witness (if such a thing even exists). I just think that it would be an interesting way for someone to make a few extra bucks once in a while. Architects get asked to do expert witness work for many different reasons--as quizzical's response illustrates. When there are issues in a trial dealing with the actions of a licensed professional, such as an architect, quite often another professional from the same field is brought in to testify as as to whether the architect's actions were in conformity with the standards of that profession. This can involve everything from design flaws to ethics. Generally, the requirements for someone to testify as an expert are little more than a license and familiarity with the norms or customs of the area. Certainly many of the architects called to testify in this capacity are so-called forensic architects, but regular joe blow architects are asked to testify as so-called experts quite often.
I don't think having a JD would make any difference as far as being "qualified" as an expert. In fact, I suspect it would hurt one's credibility since no one trusts lawyers (probably with good reason). However, a JD would be helpful for having contacts with attorneys needing an architect to testify for his or her case.
The pay for such work can be really good since one can charge every second of his or her time, including travel. Many of these witnesses have special rates (read: higher) for appearing in court. Quite often the attorneys aren't too concerned about the rates because they're banking on recovering their fees when the win. It's kind of messed up.
@ just why, I have considered zoning and construction law. They could be interesting areas to practice in. Although dealing regularly with the garbage heap that is the zoning laws of this great land sounds rather nightmarish. i'm taking a land use and "law and architecture" course next year. We'll see how I like them. The law and architecture course should be interesting, as it is a combined class with the architecture school. It will probably be filled with LS students who wish they had done arch, and arch students who wish they had done law school--a pretty sorry group indeed.
or it could be a professional practice course. we were required to take one for accreditation purposes and it was very mickey-mouse. a real lawyer would have been bored senseless...was fun for us architecture people, but we mostly learned that is best to leave law to lawyers ;-)
to become expert witness you might be happiest if you take long-term view. in ten years from now after you get your license sort of thing.
Just Why - Structural may be more objective, but there are a lot of gray areas that Architects can touch upon - other than building envelope failures. Such as "Standard of Care" "Due Dilligence" and and also architectural issues as reasonable constructability and maintenance access. And things are rarely purely structural (unless its a bridge or something) - such as a structural failure caused from corrosion due to envelope failure. Or poor coordination between structural engineer and architect. Or poor scheduling.
As a warning to all of you, the Construction Manager will almost always walk away clean from this because he is on the owner's side, no matter how much they contributed to the failure of a project (such as pushing for fast tracking when architect disagreed to it). Make these kinds of disagreements on paper and official.
Oh, and there is something to be said for the Architect's visualization and presentation abilities. At the end of the day, no matter how complex the issue is, the jury (laymen) have to understand your point. So an engineer can go on and on about "non linear analysis" or "finite element model", but the jury have to see it. You have to take the issues and package it in a way anyone can understand it.
I don't mean to intrude with judgment, but I wonder how one might address ethical concerns about accepting payment for service as an expert witness. While I understand that there can be a significant time commitment required, it seems that the testimony of an expert witness might better be considered as community service than a paid endeavor.
Obviously expert witnesses are quite often paid for their testimony, but does this make sense?
clou - expert witnesses are totally independant from whatever happened that resulted in the case. But don't let that "witness" part of the title make you think that they should be completely neutral in the matter. The truth is the expert "witnesses" works for a certain side, and helps the defendant/plaintiff's argument within the bounds of legal, professional guidelines, and technical knowledge. Within those guidelines and knowledge, its still possible to argue both ways. Its up to the lawyer to disclose or highlight certain parts of what the expert has to say. The only way for it to be completely objective would be to disclose ALL information and all issues, and that is just not feasible.
I am blanking on the legal term, but I'm aware of a process in which there is a 3rd party expert that is completely neutral that helps decide in the case, but only in certain cases. Such as an undecided jury or something.
Slartibartfast - While I agree that objectivity is a difficult proposition, an expert witness can only be expected to disclose all the information and all of the issues within their knowledge when questioned by the lawyer.
Why should an expert witness work for a certain side? Does it make sense for professional knowledge and opinion to be bought where justice is concerned?
I have never served as an expert witness but the few people I know who have (not architects), always refused payment.
jurors are paid for their time during a trial. the judge is paid for his/her time managing the trial. lawyers are damn sure paid for their time arguing on behalf of their side.
why shouldn't someone who has a particular professional expertise that can be brought to bear on the facts of the situation not be paid for his/her time?
as architects we are called on every day to provide objective, independent advice to our clients and we get paid for our expertise and our analytical ability. I don't have any trouble being objective with my clients -- I doubt you do either. Why should serving as an expert witness in a case where our expertise is relevant be any different?
clou - Maybe its a matter of scope. The cases I'm talking about are $multi-million cases involving literally tens of thousands of documents. There is no way, the jury or judge will be looking at all the documents and making some kind of judgement based on every document. It just doesn't make sense. Selecting which documents to highlight, in itself, is NOT objective, let alone how to interpret them.
Even if there was some way it can all be completely objective, why would it be an unpaid service? This is professional service, we're talking about. Maybe if the client was an non-profit organization, and the legal team is working pro-bono, and there were minimal services required. Some of these cases span multiple YEARS, and takes a lot of research - possibly more than actually the construction documentation.
file - Jurors and judges are not paid by the defendants or the plaintiffs in a trial. If you're proposing that the government pay expert witnesses for their services, I would agree that this makes sense.
I wouldn't suggest outright that it is unethical for an expert witness to receive payment even from defendant or plaintiff. I'd rather ask how expert witnesses can mitigate the potential corruption of their professional knowledge and opinion or if this even a concern.
How lawyers do it is an entirely different question.
Slartibartfast - I agree that the cases you describe sound like situations that warrant compensation. As an architect called as an expert witness in such a case by a defendant or plaintiff, would you first make your own objective determination, and then accept or decline the invitation?
It's true that even if you decline the invitation, you run the risk of receiving a subpoena. I believe that if the court summons you to appear in trial, then you are entitled to a statutory fee. The statutory fee provides compensation for your professional services but also ensures neutrality.
Um...how or why would an architect be any more ethically obligated then a doctor or psychologist or a forensic specialist? People in those type of professions serve as 'expert witnesses' all the time and are paid-so much so that it can be their main source of income. I guess I could see the ethical dilemma if you were hired to be involved in the investigation of why or how something failed (like an investigation by a gov. agency, police, fire marshal, zone board, ect.) but even then I would assume that a private investigator would be paid in that kind of situation, so the only problem would be if you were being 'bribed' by someone to lie about your findings. Whether you are investigating or testifying-the person is paying for your knowledge and experience, just as much as the person who is paying you to remodel their kitchen, and should, at the very least, pay your hourly rate for the time you are spending being a witness and not remodeling kitchens.
file - That's a fair definition of an aspect of a professional's duties. However, I don't mean to generalize here. My interest is more in how the professional can ensure that her opinion is not skewed or used unethically in a trial situation. If an expert witness is employed by a side, what measures might the professional take to limit the manipulation of professional knowledge in ways that Slartibartfast hinted at while discussing the subjectivity of "Selecting which documents to highlight..."
Maybe this is uninteresting to some, but the discussion thus far had cast the role of the expert witness as viable side work for additional income, and I wondered how this representation meshes with the ethics of an architectural professional.
I don't wish to be simplistic, but one of the basic reasons the AIA was formed was to establish standards of ethical behavior for architects.
Apropos this particular thread, the parts of the AIA Canon of Ethics that pertain directly to service as an expert witness seem to be:
CANON III – Obligations to the Client
Members should serve their clients competently and in a professional manner, and should exercise unprejudiced and unbiased judgment when performing all professional services.
Ethical Standard 3.1 Competence: Members should serve their clients in a timely and competent manner.
Ethical Standard 3.2 Conflict of Interest: Members should avoid conflicts of interest in their professional practices and fully disclose all unavoidable conflicts as they arise.
Ethical Standard 3.3 Candor and Truthfulness: Members should be candid and truthful in their professional communications and keep their clients reasonably informed about the clients’ projects.
As in all walks of life, it remains up to the individual to operate in an ethical and unbiased manner. But, one of the real satisfactions I have after 30+ years of practice is the knowledge that my profession stands for something and strives for high ethical behavior in all of our activities.
-jay - As I understand it, the role of the expert witness is to provide a professional assessment of aspects of the case that the professional is qualified to discuss.
I'm not claiming that an architect is more ethically obligated than other expert witnesses. If I were a doctor I'd be having the same discussion. I am well aware that expert witnesses are very often paid by plaintiffs and defendants. I'm not sure what this fact has to do with a discussion of ethics, unless you are implying that the action of one simply justifies the action of another.
"...the only problem would be if you were being 'bribed' by someone to lie about your findings."
Yes this would be a problem, but in the example of a paid expert witness the situation is more often a little less clear-cut. If the findings of the witness are colored by a paycheck even in subtle ways (even in the demeanor of the witness), this can affect the perceptions of a jury.
"If the findings of the witness are colored by a paycheck even in subtle ways (even in the demeanor of the witness), this can affect the perceptions of a jury."
Hmm maybe, but if a lawyer pays a 'expert witness' to look at a set of CD's and make an assessment, and that expert witness makes an assessment they dont like-they dont have to put that person on the stand. Just like they wouldnt have to put a doctor on the stand that they had paid to diagnose a client who had determined that the client didnt have a disease they claimed to have. Again, the only real problem I would see would be if the 'expert witness' agrees to lie for money, in which case they would be breaking the law and I would imagine professional ethics would be the least of their worries.
Clou - I wasn't hinting that the expert's professional knowledge will be manipulated. If someone has an argument, they'll look for information that supports their argument. That is not manipulation. It is not in the expert witness' interests to lie or provide false or even intentional incomplete information (loss of credibility, reputation, LICENSE, etc). My use of "subjectivity" implies that there is NO black and white. Most likely expert witnesses will tell the truth on both sides, but one truth will override the other. You're thinking one is absolutely right and the other is absolutely wrong; it doesn't always work that way. To have a neutral expert witness that provides some kind of absolute answer would make the jury pretty much unneccessary. That sounds scary to me, actually.
As Jay mentioned (I thought I said this already but didn't) "if that expert witness makes an assessment they dont like-they dont have to put that person on the stand." Also, we can't control what goes on behind the scenes (bribes, etc).
But like I said, it is NOT in the expert's interests.
Slartibartfast - I'm sorry if it sounded like I was setting up a black and white, right or wrong scenario, and I suppose manipulation was a poor way of phrasing it. I agree that there are no absolute answers.
I'm not sure what you mean by "behind the scenes."
However, as I said before, the fact that a witness is paid by a side can affect their testimony (not whether they tell some form of absolute "truth", but simply whether they are providing an objective professional opinion in some form), it also actually diminishes their credibility. As I understand it, this is the primary reason that courts pay expert witnesses a statutory fee if they are summoned to the court.
I suspect that in the real world there are two fundamental types of 'expert witnesses':
a) those who are straight arrows and who make their expertise and time available to legal teams for a reasonable fee and who apply their knowledge professionally to the task at hand. if the lawyer doesn't like the conclusions this expert draws, the expert isn't called to the stand.
b) those who are willing to tailor or customize their testimony around the result they know / suspect the attorney desires.
either way, the other side has the chance to cross examine the witness with rigor. if an expert were a part of my defense team, I know I'd rather have the first type.
My dad is mostly retired and at this point does a bunch of expert witness work (only in defense). He's definitely the "straight arrow" type, and has found that over time most lawyers have learned to trust him and will work to settle if he says the defendant is in the wrong. He's well paid for his time, but it's in line with what a experienced partner would bill for services anyway.
Right out of college I worked on a case with him because they needed some modelling done. It was a really interesting case where this old rammed earth church was suing terminex because they claimed that termites had climbed up the dirt walls and eating out the timber roof support. We went up there and rented a scissor lift, took a look at the roof and couldn't find termites anywhere, but the roof was indeed still having problems (you could see the big ass logs bowing under pressure).
After looking at some old plans (this building was constructed some time in the 1800s) we learned that one corner of the church had collapsed as part of a fire some time in the 70's. The original roof was cedar shake, but when they repaired it they put a new slate roof, amazingly without any additional support... As you might guess, this added weight caught up over time. I can't remember whether the case ended up in court or not, but I know that terminex ended up not losing and I got a pretty nice check for building a large physical scale model of a wall section... I'd love to do that full time, but I don't have the experience to do it on my own (dad has some 50 years experience as of this year, I have less than 4) and he doesn't have (or want) the workload to support a full-time employee...
Jun 29, 09 6:22 pm ·
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Anyone ever do any expert witness work?
Out of curiosity, has anyone ever been an expert witness in a trial? If so, how did it come about? What did they pay you? Have you done it more than once?
expert in what?
I was an expert witness once in a divorce trial. The wife was asking for half the value of the husband's design firm as part of her settlement. She had hired her own 'expert' who knew absolutely nothing about how design firms really are valued. I was the expert witness for the husband; the judge accepted my valuation; my testimony saved the husband about $300,000. I was paid my normal hourly rate for the time I spend conducting the valuation, preparing for trial, and appearing in court. I've only done this the one time. Actually, it was sorta fun.
my technical/archi-science instructor was often a witness for trials back when i was in undergrad. he used cases as examples of how not to design building envelopes and so on. actually was pretty good learning to be had...no idea what he was paid. i think being able to put on resume that he was considered expertly on the subject of building technology was big deal for him. he had business as consultant on side and that was like seal of approval...his main job was as professor in university, which is why he was approached i should think.
why... you have been asked, gargamel?
Why? I am about to finish my JD (one more year) and have not-too-seriously contemplated getting an m.arch--we can save this discussion for another time.
It seems like there's a decent need for expert witnesses in this area, and it would be a good way to supplement one's income. I was curious mostly about how common witness work is and how people obtain it.
you gotta be old and grizzled with lots of experience to be called up to the witness stand as an architect. The term you're looking for is 'Forensic Architect'.
The man/woman that sits in court doesn't have to be the only one doing the research. Depending on the scope of the work, it may involve a lot more people doing a lot of research/study, setting up the presentation, etc.
To become one, as TK mentioned, it takes a lot of experience and technical knowledge. I've done forensic work, but I am never the one that sits in court as I'm less experienced. I don't think a knowledge of the law would be helpful to become an expert witness, though.
I think you will find that one can become (if so inclined) an "expert witness" only after becoming a credible "expert" in something.
There are agencies where "experts" in a particular area can register - much like a speakers bureau. A quick google search should turn up several.
My impression is that fees for such work are not great - you probably can make a better living by being a genuine "expert" than as an "expert witness".
I was an expert witness in a jury trial involving a homeowner suing a contractor over some renovation work. I thought I was too green for it at first. I was called on because I was 'qualified' simply by being a licensed architect, and it was a clearcut issue so I reluctanly did it..
I got paid $300 for about 15 minutes of work which wasn't too shabby...
on a side note... has anyone become a home inspector/building inspector? i'm thinking about getting a little side thing going on.
It seems like there might be more of a "market" for structural expert witnesses than for architectural expert witnesses because structural engineering is more objective than most things architectural. True, there will always be cases of buildings leaking, finishes degrading, and buildings just not performing how they should.
Allyn E. Kilsheimer is a practicing structural engineer here in DC who tends to be called whenever there is a major structural failure in this country. He's got years of experience with this kind of stuff. I agree with the comments above - one needs to be an expert at something first; expert witness invitations seem to come as a result. Said another way, expert witnessing seems to be a side job for those who are already practicing in their field.
smrufstomper - it sounds like you might have an interest in construction law or being a zoning attorney. Zoning is big business in downtown areas - or at least it is big business in a town (DC) that has height restrictions, historic preservation review boards, fine arts commissions, neighborhood groups, overlay districts, etc. Two firms that you might look at are:
Holland & Knight
Pillsbury Winthrop Shaw Pittman
Heck, lawyers are even getting involved with the legal requirements of sustainable buildings and LEED, such as Seyfarth Shaw and others.
Anyways, good luck on your quest.
@laquer Funny you should say that- just today I was looking into it. There's not bad money in becoming a construction official for a town... some of the one's around my parts make 100k a year...
Thanks for all the great comments. I'm not looking to become a full-time, professional expert witness (if such a thing even exists). I just think that it would be an interesting way for someone to make a few extra bucks once in a while. Architects get asked to do expert witness work for many different reasons--as quizzical's response illustrates. When there are issues in a trial dealing with the actions of a licensed professional, such as an architect, quite often another professional from the same field is brought in to testify as as to whether the architect's actions were in conformity with the standards of that profession. This can involve everything from design flaws to ethics. Generally, the requirements for someone to testify as an expert are little more than a license and familiarity with the norms or customs of the area. Certainly many of the architects called to testify in this capacity are so-called forensic architects, but regular joe blow architects are asked to testify as so-called experts quite often.
I don't think having a JD would make any difference as far as being "qualified" as an expert. In fact, I suspect it would hurt one's credibility since no one trusts lawyers (probably with good reason). However, a JD would be helpful for having contacts with attorneys needing an architect to testify for his or her case.
The pay for such work can be really good since one can charge every second of his or her time, including travel. Many of these witnesses have special rates (read: higher) for appearing in court. Quite often the attorneys aren't too concerned about the rates because they're banking on recovering their fees when the win. It's kind of messed up.
@ just why, I have considered zoning and construction law. They could be interesting areas to practice in. Although dealing regularly with the garbage heap that is the zoning laws of this great land sounds rather nightmarish. i'm taking a land use and "law and architecture" course next year. We'll see how I like them. The law and architecture course should be interesting, as it is a combined class with the architecture school. It will probably be filled with LS students who wish they had done arch, and arch students who wish they had done law school--a pretty sorry group indeed.
or it could be a professional practice course. we were required to take one for accreditation purposes and it was very mickey-mouse. a real lawyer would have been bored senseless...was fun for us architecture people, but we mostly learned that is best to leave law to lawyers ;-)
to become expert witness you might be happiest if you take long-term view. in ten years from now after you get your license sort of thing.
Just Why - Structural may be more objective, but there are a lot of gray areas that Architects can touch upon - other than building envelope failures. Such as "Standard of Care" "Due Dilligence" and and also architectural issues as reasonable constructability and maintenance access. And things are rarely purely structural (unless its a bridge or something) - such as a structural failure caused from corrosion due to envelope failure. Or poor coordination between structural engineer and architect. Or poor scheduling.
As a warning to all of you, the Construction Manager will almost always walk away clean from this because he is on the owner's side, no matter how much they contributed to the failure of a project (such as pushing for fast tracking when architect disagreed to it). Make these kinds of disagreements on paper and official.
Oh, and there is something to be said for the Architect's visualization and presentation abilities. At the end of the day, no matter how complex the issue is, the jury (laymen) have to understand your point. So an engineer can go on and on about "non linear analysis" or "finite element model", but the jury have to see it. You have to take the issues and package it in a way anyone can understand it.
I don't mean to intrude with judgment, but I wonder how one might address ethical concerns about accepting payment for service as an expert witness. While I understand that there can be a significant time commitment required, it seems that the testimony of an expert witness might better be considered as community service than a paid endeavor.
Obviously expert witnesses are quite often paid for their testimony, but does this make sense?
clou - expert witnesses are totally independant from whatever happened that resulted in the case. But don't let that "witness" part of the title make you think that they should be completely neutral in the matter. The truth is the expert "witnesses" works for a certain side, and helps the defendant/plaintiff's argument within the bounds of legal, professional guidelines, and technical knowledge. Within those guidelines and knowledge, its still possible to argue both ways. Its up to the lawyer to disclose or highlight certain parts of what the expert has to say. The only way for it to be completely objective would be to disclose ALL information and all issues, and that is just not feasible.
I am blanking on the legal term, but I'm aware of a process in which there is a 3rd party expert that is completely neutral that helps decide in the case, but only in certain cases. Such as an undecided jury or something.
Slartibartfast - While I agree that objectivity is a difficult proposition, an expert witness can only be expected to disclose all the information and all of the issues within their knowledge when questioned by the lawyer.
Why should an expert witness work for a certain side? Does it make sense for professional knowledge and opinion to be bought where justice is concerned?
I have never served as an expert witness but the few people I know who have (not architects), always refused payment.
jurors are paid for their time during a trial. the judge is paid for his/her time managing the trial. lawyers are damn sure paid for their time arguing on behalf of their side.
why shouldn't someone who has a particular professional expertise that can be brought to bear on the facts of the situation not be paid for his/her time?
as architects we are called on every day to provide objective, independent advice to our clients and we get paid for our expertise and our analytical ability. I don't have any trouble being objective with my clients -- I doubt you do either. Why should serving as an expert witness in a case where our expertise is relevant be any different?
clou - Maybe its a matter of scope. The cases I'm talking about are $multi-million cases involving literally tens of thousands of documents. There is no way, the jury or judge will be looking at all the documents and making some kind of judgement based on every document. It just doesn't make sense. Selecting which documents to highlight, in itself, is NOT objective, let alone how to interpret them.
Even if there was some way it can all be completely objective, why would it be an unpaid service? This is professional service, we're talking about. Maybe if the client was an non-profit organization, and the legal team is working pro-bono, and there were minimal services required. Some of these cases span multiple YEARS, and takes a lot of research - possibly more than actually the construction documentation.
file - Jurors and judges are not paid by the defendants or the plaintiffs in a trial. If you're proposing that the government pay expert witnesses for their services, I would agree that this makes sense.
I wouldn't suggest outright that it is unethical for an expert witness to receive payment even from defendant or plaintiff. I'd rather ask how expert witnesses can mitigate the potential corruption of their professional knowledge and opinion or if this even a concern.
How lawyers do it is an entirely different question.
Slartibartfast - I agree that the cases you describe sound like situations that warrant compensation. As an architect called as an expert witness in such a case by a defendant or plaintiff, would you first make your own objective determination, and then accept or decline the invitation?
It's true that even if you decline the invitation, you run the risk of receiving a subpoena. I believe that if the court summons you to appear in trial, then you are entitled to a statutory fee. The statutory fee provides compensation for your professional services but also ensures neutrality.
As architects, we do this every day -- at least, responsible architects do. This is the quintessential definition of a true professional, IMHO.
Um...how or why would an architect be any more ethically obligated then a doctor or psychologist or a forensic specialist? People in those type of professions serve as 'expert witnesses' all the time and are paid-so much so that it can be their main source of income. I guess I could see the ethical dilemma if you were hired to be involved in the investigation of why or how something failed (like an investigation by a gov. agency, police, fire marshal, zone board, ect.) but even then I would assume that a private investigator would be paid in that kind of situation, so the only problem would be if you were being 'bribed' by someone to lie about your findings. Whether you are investigating or testifying-the person is paying for your knowledge and experience, just as much as the person who is paying you to remodel their kitchen, and should, at the very least, pay your hourly rate for the time you are spending being a witness and not remodeling kitchens.
file - That's a fair definition of an aspect of a professional's duties. However, I don't mean to generalize here. My interest is more in how the professional can ensure that her opinion is not skewed or used unethically in a trial situation. If an expert witness is employed by a side, what measures might the professional take to limit the manipulation of professional knowledge in ways that Slartibartfast hinted at while discussing the subjectivity of "Selecting which documents to highlight..."
Maybe this is uninteresting to some, but the discussion thus far had cast the role of the expert witness as viable side work for additional income, and I wondered how this representation meshes with the ethics of an architectural professional.
I don't wish to be simplistic, but one of the basic reasons the AIA was formed was to establish standards of ethical behavior for architects.
Apropos this particular thread, the parts of the AIA Canon of Ethics that pertain directly to service as an expert witness seem to be:
CANON III – Obligations to the Client
Members should serve their clients competently and in a professional manner, and should exercise unprejudiced and unbiased judgment when performing all professional services.
Ethical Standard 3.1 Competence: Members should serve their clients in a timely and competent manner.
Ethical Standard 3.2 Conflict of Interest: Members should avoid conflicts of interest in their professional practices and fully disclose all unavoidable conflicts as they arise.
Ethical Standard 3.3 Candor and Truthfulness: Members should be candid and truthful in their professional communications and keep their clients reasonably informed about the clients’ projects.
As in all walks of life, it remains up to the individual to operate in an ethical and unbiased manner. But, one of the real satisfactions I have after 30+ years of practice is the knowledge that my profession stands for something and strives for high ethical behavior in all of our activities.
-jay - As I understand it, the role of the expert witness is to provide a professional assessment of aspects of the case that the professional is qualified to discuss.
I'm not claiming that an architect is more ethically obligated than other expert witnesses. If I were a doctor I'd be having the same discussion. I am well aware that expert witnesses are very often paid by plaintiffs and defendants. I'm not sure what this fact has to do with a discussion of ethics, unless you are implying that the action of one simply justifies the action of another.
"...the only problem would be if you were being 'bribed' by someone to lie about your findings."
Yes this would be a problem, but in the example of a paid expert witness the situation is more often a little less clear-cut. If the findings of the witness are colored by a paycheck even in subtle ways (even in the demeanor of the witness), this can affect the perceptions of a jury.
file - I agree completely.
"If the findings of the witness are colored by a paycheck even in subtle ways (even in the demeanor of the witness), this can affect the perceptions of a jury."
Hmm maybe, but if a lawyer pays a 'expert witness' to look at a set of CD's and make an assessment, and that expert witness makes an assessment they dont like-they dont have to put that person on the stand. Just like they wouldnt have to put a doctor on the stand that they had paid to diagnose a client who had determined that the client didnt have a disease they claimed to have. Again, the only real problem I would see would be if the 'expert witness' agrees to lie for money, in which case they would be breaking the law and I would imagine professional ethics would be the least of their worries.
I maybe completely wrong on this one though, I am hardly experienced enough to be an 'expert' on anything.
That's a good point, -jay. It's true that an expert witness does most of their work outside of the courtroom.
Clou - I wasn't hinting that the expert's professional knowledge will be manipulated. If someone has an argument, they'll look for information that supports their argument. That is not manipulation. It is not in the expert witness' interests to lie or provide false or even intentional incomplete information (loss of credibility, reputation, LICENSE, etc). My use of "subjectivity" implies that there is NO black and white. Most likely expert witnesses will tell the truth on both sides, but one truth will override the other. You're thinking one is absolutely right and the other is absolutely wrong; it doesn't always work that way. To have a neutral expert witness that provides some kind of absolute answer would make the jury pretty much unneccessary. That sounds scary to me, actually.
As Jay mentioned (I thought I said this already but didn't) "if that expert witness makes an assessment they dont like-they dont have to put that person on the stand." Also, we can't control what goes on behind the scenes (bribes, etc).
But like I said, it is NOT in the expert's interests.
Slartibartfast - I'm sorry if it sounded like I was setting up a black and white, right or wrong scenario, and I suppose manipulation was a poor way of phrasing it. I agree that there are no absolute answers.
I'm not sure what you mean by "behind the scenes."
However, as I said before, the fact that a witness is paid by a side can affect their testimony (not whether they tell some form of absolute "truth", but simply whether they are providing an objective professional opinion in some form), it also actually diminishes their credibility. As I understand it, this is the primary reason that courts pay expert witnesses a statutory fee if they are summoned to the court.
I suspect that in the real world there are two fundamental types of 'expert witnesses':
a) those who are straight arrows and who make their expertise and time available to legal teams for a reasonable fee and who apply their knowledge professionally to the task at hand. if the lawyer doesn't like the conclusions this expert draws, the expert isn't called to the stand.
b) those who are willing to tailor or customize their testimony around the result they know / suspect the attorney desires.
either way, the other side has the chance to cross examine the witness with rigor. if an expert were a part of my defense team, I know I'd rather have the first type.
My dad is mostly retired and at this point does a bunch of expert witness work (only in defense). He's definitely the "straight arrow" type, and has found that over time most lawyers have learned to trust him and will work to settle if he says the defendant is in the wrong. He's well paid for his time, but it's in line with what a experienced partner would bill for services anyway.
Right out of college I worked on a case with him because they needed some modelling done. It was a really interesting case where this old rammed earth church was suing terminex because they claimed that termites had climbed up the dirt walls and eating out the timber roof support. We went up there and rented a scissor lift, took a look at the roof and couldn't find termites anywhere, but the roof was indeed still having problems (you could see the big ass logs bowing under pressure).
After looking at some old plans (this building was constructed some time in the 1800s) we learned that one corner of the church had collapsed as part of a fire some time in the 70's. The original roof was cedar shake, but when they repaired it they put a new slate roof, amazingly without any additional support... As you might guess, this added weight caught up over time. I can't remember whether the case ended up in court or not, but I know that terminex ended up not losing and I got a pretty nice check for building a large physical scale model of a wall section... I'd love to do that full time, but I don't have the experience to do it on my own (dad has some 50 years experience as of this year, I have less than 4) and he doesn't have (or want) the workload to support a full-time employee...
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