Engineers as Expert Witness

An Expert Witness is a
person with specialized
knowledge of a technical or
scientific subject whose testimony
includes interpreting the facts and
giving opinions about their
relevance in making judgments
about the matter under
consideration.

Unlike fact witnesses whose testimony can only describe personal

observations, experience or knowledge, expert witnesses are allowed, even expected, to
express opinions about matters in which they have been accepted as having special
knowledge that the average person does not possess. Expert witnesses are needed to
interpret technical information for people who do not have the knowledge to evaluate it,
understand its meaning and apply it to the process of making a decision about the matter
at hand.

Experts must understand their role

is to be neutral and impartial servants of
the court or tribunal they appear before,
and not representatives or advocates of
the party hiring them. Over the past few
years, courts have developed high
expectations about the impartiality and
neutrality of expert witnesses. This
expectation is based on the inability of
courts or tribunals to challenge an expert
‘s opinion directly (because of their own
lack of expertise).
Requirements for an Expert Witness

The expert must:

 Recognize that his or her task is to present the truth to the court
 Tell the truth
 Ensure that personal and professional background is beyond reproach
 Present testimony that pertains to a subject whose technology is beyond common
experience
 Use authentic references in reports
 Not use junk science
 Present testimony based on material that is known to be valid
 Present testimony that is based on special knowledge, experience, education, and
skill
 Present testimony that is limited to a specific area of his or her knowledge
 Present testimony that demonstrates the validity of his or her analysis of the facts
 Present testimony that allows valid conclusions to be drawn from the facts
 Speak understandably
 Speak authoritatively
 Answer the questions simply, preferably with a yes or no
 Only elaborate on an answer when asked
 Evaluate the strengths and weaknesses of the argument
 Adhere to the required confidentiality
 Maintain good relationships with the attorney
 Be courteous to opposing counsel and all others involved in the case
 The expert must not:
 Take on an assignment for the money only
 Place himself or herself in a position of conflict of interest
 Lie or give false information
 Embellish a résumé or use résumé fluff
 Miss any deadlines for written reports
  Be disrespectful to the court
 Speak in hushed or inaudible tones
 Pontificate
 Attempt to interpret the law
 Allow a disrespectful or abusive attorney to intimidate him or her
 Throw away files until advised by counsel to do so

Qualifications and Experience

Expert witnesses play a vital

role in the judicial system, and this is
especially true for the scientist or
engineer who opts to be an expert
witness. They can prevent the filing of
unmeritorious lawsuits and even
change the course of a case. For one
part or the other, engaging the expert
whose credentials are most relevant
to the case is a major issue. Expert
witnesses can often make or break a
case when it comes to prosecuting or defending a case in a court of law. Now more than
ever, issues in litigation are requiring the services of expert witnesses to enlighten judges
and juries on technical matters and standards of care for industry issues related to the
cases brought before them.

Most critical to choosing an expert is the ability of the scientist or engineer to

assimilate the facts, abstract the relevant issues, synthesize facts, reach a conclusion,
and present opinions and conclusions in a manner that in understandable to the court
(the judge and the jury). Openness, honesty, forthrightness, and a genuine desire to help
a jury or judge decide a case are valuable traits that cannot and should not ever be
overlooked or underestimated.
 When choosing an expert witness,
attorneys look for those with
qualifications that will help them
establish who or what might be involved
or the cause of issues in the lawsuit,
thus adding substance to their position
or allegations. In some cases, the
scientist’s or engineer’s level of
education (i.e., BS, BSc, or B.Eng. vs.
PhD) is far less important than the
scientist’s or engineer’s knowledge and
level of experience in the necessary field
or discipline.

The first issue to be addressed by the attorney and the scientist or engineer relates
to qualifications and whether or not the would-be expert’s qualifications are suitable for
the scientist or engineer to present authoritative and believable opinions and conclusions
on the case.

The attorney should first determine if the would-be expert can present a minimum
of education in terms of degrees awarded and the institution where they were awarded.
Similarly, the attorney must be able to present this information to the court and have the
scientist or engineer accepted as an expert on the case.

The major subject of study, or area of scholarship, should be related to the issues
of the case. A passing interest or a hobby study is usually of little consequence and
relevance in qualifying a scientist or engineer to be an expert. For example, an interest in
figure skating and even being a figure skating judge does not give a scientist or engineer
the necessary qualifications to testify on a case related to injuries sustained during figure
skating. The potential expert should assess the qualifications that give him or her a right
to place his or her experience and credibility forward in order to be engaged by an attorney
to have an opinion on a case. He or she must be able to present to the court and to a jury
a minimum of acceptable qualifications that is required to present a credible opinion. The
first aspect of qualifications pertains to education. The jury will assess an expert based
on the subject matter of the expert’s degrees and the university that awarded the degrees.
Information such as the year that the degrees were awarded, the major subject, and the
minor subjects is important.

Advanced degrees in environmental science and environmental engineering are,

generally speaking, relatively recent phenomena, commencing in the 1970s. If the expert
is the recipient of such a degree, members of the jury need to know that the expert has a
good basic grounding in a scientific or engineering discipline. There was a time (not so
long ago) when the recipients of degrees that dubbed the recipient environmental scientist
or environmental engineer were noted to be weak in basic scientific and engineering
disciplines. Fortunately, most universities have taken steps to rectify these apparent
weaknesses.

It is not a good idea for the scientist or engineer to attempt to show that his or her
breadth of knowledge blankets the world. Juries frown on experts who cover too many
diverse topics and appear to be global experts. A good rule of thumb is that a scientist or
engineer should be qualified as an expert in his or her major field of scholarship or work
and, at the most, two subspecialties. It is incumbent on the attorney, perhaps with the aid
of the expert, to find other specialists who can discuss areas in which the expert is not
fully conversant. For example, if an attorney approaches a scientist or engineer to testify
in a subspecialty of science or engineering in which he or she is not comfortable, it is best
for the expert to avoid being talked or flattered into accepting the assignment.

If the scientist or engineer does succumb and testifies in too many fields, the
opposing counsel will attempt to cast doubt on his or her expertise in cross-examination.
It will be easy for the opposing counsel to characterize the expert as a jack of all trades
but a master of none.
 Expert Evidence
An Expert Evidence is an
admissible testimony relating to a
professional, scientific, or technical
subject. Expert evidence is based
on formal and/or special study,
training, or experience that imparts
the competency to form an opinion
upon matters associated with that
subject. It is the duty of the
authoritative expert to present the
necessary scientific/technical criteria to enable a court to test the accuracy of its own
conclusions and to form its own independent judgment of the evidence. Before given the
permission to state their opinion, the 'experts' are usually questioned by the court to
evaluate their qualifications and experience in the subject.

Professional Duty

The Board of Directors of the American

Institute of Chemical Engineers adopted this
Code of Ethics to which it expects that the
professional conduct of its members shall
conform, and to which every applicant attests
by signing his or her membership application.
Members of the American Institute of Chemical
Engineers shall uphold and advance the
integrity, honor and dignity of the engineering
profession by: being honest and impartial and
serving with fidelity their employers, their clients, and the public; striving to increase the
competence and prestige of the engineering profession; and using their knowledge and
skill for the enhancement of human welfare. To achieve these goals, members shall:
1. Hold paramount the safety, health and welfare of the public and protect the environment
in performance of their professional duties.

2. Formally advise their employers or clients (and consider further disclosure, if

warranted) if they perceive that a consequence of their duties will adversely affect the
present or future health or safety of their colleagues or the public.

3. Accept responsibility for their actions, seek and heed critical review of their work and
offer objective criticism of the work of others.

4. Issue statements or present information only in an objective and truthful manner.

5. Act in professional matters for each employer or client as faithful agents or trustees,
avoiding conflicts of interest and never breaching confidentiality.

6. Treat all colleagues and co-workers fairly and respectfully, recognizing their unique
contributions and capabilities by fostering an environment of equity, diversity and
inclusion.

7. Perform professional services only in areas of their competence.

8. Build their professional reputations on the merits of their services.

9. Continue their professional development throughout their careers, and provide

opportunities for the professional development of those under their supervision.

10. Never tolerate harassment.

11. Conduct themselves in a fair, honorable and respectful manner.

References:

Speight, J. (2008). The Scientist or Engineer as an Expert Witness. New York, NY: CRC
Press

Objectives:

To be able to discuss what is an Expert Witness and the qualifications of an Expert

Witness

To be able to discuss what is an expert evidence

To be able to discuss the professional duty of an engineer