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m. National

Academy of

Forensic Engineers ~ - )

Board of Directors

( I PRESIDENT Thomas P. Shelchick, P.E. 3595 Sunnydays Ln, Santa Clara (95051) P.O. Box 62284 Sunnyvale, CA 94088 (408) 615-7900 Fax (866) 420-7955

( I PRESIDENT ELECT Richard D. Brugger, P.E. 2822 State Street P. 0 . Box82 Erie, PA 16512-0082 (6141 453-3590 Fax 454-4754

( I SENIOR VICE PRESIDENT Mark A. Whelchel, P.E. 42415 Road 208 Friant, CA 93626 (888) 309-1002 Fax (559) 822-4845

\ ) VICE PRESIDENT E. Smilh Reed, P.E. 5 Dayton Drive Hanover, NH 03755 (6031 643-5445 Fax 843.g449

( I TREASURER Charles P. Reynolds, P.E. 50182 Scott Court Shelby Twp, Ml 48317-6344 (566) 306-4824 Fax 726-2814

\ ) SECRETARY E. Ross Curtis, P,E. 1123 Cannon Hill Road Hedgesville, WV 25427-5612 (304) 754-5560 Fax 754-5561

I ] PAST PRESIDENT Louis E. Howarth, P.E. 21 Davenport Place Morristown, NJ 07960-6572 (973) 326-1502 Fax

( I PAST PRESIDENT Michael Kravitz, P.E. 484 W est 43rd Street Suite #32-S New York, NY 10036-6333 (212) 244-3890 Fax 244-3891

( I PAST PRESIDENT John M. Carden, P.E. 3445 Anna Ruby Lane Douglasville, GA 30135-1794 (676) 838-8207 Fax 838-1233

( I DIRECTOR AT LARGE Richard M. Ziernicki, Ph.D .. P.E. Knott Laboratory, LLC 7185 SoUlh Tucson Way Englewood, CO 80112-3987 (303) 925-1900 Fax 925-1901

~/RECTOR AT LARGE Marvin M. Specter, P.E.,LS. F.NSPE, Hon.M. ASCE 174 Brady Avenue Hawthorne, NY 10532 (914) 747-1123 Fax 747-2988

NAFE Message Center, Toll Free (666) 623-367 4 (666-NAFEORG) Fax (677) 741-0633 e-mail; nafe@nafe.org Web S~e: http:llwww.nale.org

NAFE HONORS: E. Joyce Dixon, Founder and Executive D~ector (1982- 1999)

To:

Ref:

National Academy of Forensic Engineers® Chartered Affinity Group of the National Society of Professional Engineers (NSPE) Charter Member of the Council of Engineering and Scientific Specialty Boards (CESB)

Please reply to: [x]

Members and Affiliates of NAFE and others of Interest

Guidelines II

In 2005 NAFE Pres. John M. Carden, P.E., appointed a special committee to add supplemental information and current comments to the "Guidelines for the P.E. as a Forensic Engineer: The Engineer as a Witness."

The original "Guidelines" were written by the undersigned in 1979 for an NSPE PEPP committee and published by NSPE in 1980, then republished by NSPE, and then in 2001 by NAFE with p e rmi ssion of NSPE. All NAFE Membe rs and Af filia t es have been furnishe d copie s of the 2001 printing.

The attached writings titled as "Guidelines II" should now be retained w1th the or1g1nal 11 Gu1del1nes" which they supplement (not replace ). They were approve d and adopted by the NAFE Board of Directors on January 4, 2008.

The Guidelines II Committee was unde r the excellent chairmanship of Paul R. Ste phe ns, P.E., assisted by committee members John M. Carden, P.E . , Louis E. Howarth, P.E., Laura L. Liptai, Ph.D., John A. Murdoch, P.E., E. Smith Ree d, P.E., a nd Marvin M. Sp e cter, P.E., L.S.

MMS: e n Att.

~sr~ M. M. Specter , P. E., L.S. F.NSPE, Hon.M . ASCE Executive Director, NAFE

tiP .

Supplement to Guidelines for the P .E. as a Forensic Engineer

Introduction:

This supplement is being issued to provide clarification and expansion of some topics contained in the document that was developed and published initially in 1980 (most recently published (3rd edition) in 2001). It is not intended to replace that document, which has stood the test of time and remains an authoritative guideline for ethical professional engineering practice in the forensic engineering field. Readers are encouraged to use this supplement and the original document concurrently. [Paragraph numbers coincide with those ofthe 1980 publication].

Financial Arrangements

7. Review the January 2005 NAFE publication titled "Contingent Fee Practice of Forensic Engineering is Unethical" document for additional fee-related guidance. Included therein is the NSPE Board ofEthical Review [BER] Case 2003-13 on this subject.

Investigations and Preparation

13. To preserve evidence for future evaluation, unless you and all other parties to the litigation jointly agree otherwise, site or evidence inspections and tests must be non­destructive. Cover plates, if they themselves are not evidence related to the incident, may be removed to examine hidden components visually. It is recommended that nothing be purposefully altered unless a protocol bas been agreed upon and authorized by all parties to the litigation. Be mindful that evidence alteration can affect the understanding of the incident.

14. An assessment of what level of activity is required is particularly important in view of the post mid 1990 impact of Daubert-related requirements on forensic engineers. There may be situations where the client will be unwilling to compensate you in full for the analysis and tests that in your opinion are necessary to comply with Daubert­related court requirements. As a career forensic engineer, you would then have to decide what must be done to complete your professional obligations.

·.

15. Evidence in your possession must be stored in a secure location to avoid deterioration. A failure to maintain evidence in proper condition can be grounds for an allegation of evidence spoliation. The forensic engineer should also consider whether or not his or her insurance coverage is inclusive of evidence spoliation coverage. Some offices choose to return all evidence to the client to eliminate the likelihood for improper storage or maintenance as well as long-term expense.

16. Appropriate chain of custody records that should be generated and maintained in your file include: signed receipts for evidence moving into or out of your custody; shipping documents, such as shipment receipts, photographs of the evidence in the condition received and the condition upon release from your custody.

17. The Court as "Gatekeeper" may be making admissibility judgments based on the content of your resume, your report, or an expert disclosure. Evaluate whether or not the connection between your qualifications and the technology involved in the case would be evident to the court. What might be basic engineering to you may not be viewed by the court as sufficient basis for testimony determined to require specialized competence. Be sure that you provide all pertinent information to the client retaining you.

ProceduraJ Problems

12. Be mindful that such records are discoverable and should not contain language or punctuation that a legal professional could construe as your having adopted a liability theory without benefit of analysis. The lack of a question mark after a theory of liability stated as an alternate possibility might be exploited to allege bias on.your part.

13. Request and note the name of at least the plaintiff on all inquiries to facilitate the detection of duplicate calls. Unless you have received verbal assurance from the initial contact that you were being retained or a letter of retention, you have not been retained and are free to offer your services to the second caller. However, it is recommended that you advise the second caller of the initial contact so that he or she can be prepared to address any objections from the initial caller to your use as the second caller's expert based on the alleged prior exchange of confidential information or other such basis. It is best to avoid receiving or discussing any information that might be construed as confidential or privileged until a written agreement for services is completed.

Some attorneys may object if opposing counsel retains you after having spoken with you about the case. Be very careful about working for opposing counsel after one side has spoken with you about the case, without retaining you, even though legally you may have the right to do so.

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14. Subpoenas can be attempts to compel you to appear for deposition testimony on an adversary's terms, not yours, or to produce a copy of your files. Be mindful that subpoenas other than those issued by a federal court are not valid across state lines. Some states may not require you to leave your county of record. However, in all cases, your client should be made aware that you have received a subpoena so that he or she can take action with the initiating party. If a subpoena requests personal records, such as tax forms or records on other cases, because such information or records may generally be considered confidential and unrelated to the case at hand, even if your client does not object to such document production, you may wish to resist. In such a situation, you, personally, may want to retain an attorney to represent you personally and have that attorney prepare an appropriate response.

15. It is unusual that an expert witness' personal attorney is present during an expert's deposition. However, do not assume or expect that your client will protect your professional and legal interests. The nature of forensic engineering is such that your client's interest is in the outcome of his or her case whiie yours is in the objective, unbiased, professional rendering of expert engineering opinions. Some questions may demand personal information such as your social security number, annual income, company revenues, terms of a divorce, investments, lawsuits filed against you or your company, or other such personal questions. You need not answer such questions during the deposition, and a suggested response might be to invoke your right to privacy. If later ordered by a judge, you may wish to reserve the right to consult with your personal attorney prior to answering such questions.

16. You must not permit unauthorized disassembly or alteration of evidence in your possesston.

17. When provided medical information as part of a forensic engineering analysis, the Health Insurance Portability and Accountability Act of 1996 ("HIP AA'') should be considered in view of the Act's intent to provide privacy of medical information. It is recommended that the forensic engineering office control how individuals' health information is handled to minimize access to the information outside of forensic engineering analytical and educational use. Two practical examples to protect the medical privacy of individuals' medical information within the forensic engineering office include: 1) changing the names of the parties for presentation and publication and 2) shredding the medical information or returning it to the client.

3

Guidelines for the P.E. as a Forensic Engineer The Engineer as an Expert Witness

National AcademvoF

" Forensic En!!ineers®

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National Academy

of Forensic

Engineers ~)

January,2001

-·· . -

Guidelines for the P.E. as a Forensic Engineer The Engineer as an Expert Witness

National AcademvoF .,

Forensic En!!ineers®

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National Academy

of Forensic

Engineers

January,2001

For Further Information Contact:

The National Academy of Forensic Engineers (NAFE) 174 Brady Avenue. Hawthorne. NY I 0532

Marv in M. Specter. P .E., L.S. (Founding Pres idem) NAFE Execu1i1'e Direclor

Website: www.nafc.org E-m<lil: nafc0;nafe.org

Telephone: (toll free) 866-NAFE-ORG (numerically) 866-623-3674

Fax: (toll free) 877-74 1-0633

© 200 I National Academy of Forensic Engineers (NAFE)

Post-Mal Circumstances (or Negotiated Settlement)

I. Let the attorney in the case know where you can be reached after you have testified in the event it is necessmy to recall you in rebuttal.

2. Be aware that you a re o bl iged to retain your files, exhibits and other data used in your testimony to be reused if an appeal or retria l is scheduled. As a general rule. do not dispose of any files. exhibits or other data unti l at least one year fo llowing forma l notification of an officia l complete settlement in the case.

3. After the tria l is over. discuss the results with the attorney in the case. Solic it the attorney·s opinion of your testimony and the effec tiveness of the evi­dence. exhibits and demonstrations employed. Discuss the possibil ity of further legal action. Schedule the subm ission of your final billing .

4. Where appropriate. follow up the trial proceedings with recommendations for corrective act ion to eliminate unsafe conditions, inadequate des igns. manufacturing defects. lack of user education. etc.

After the trial. cases are often appealed. It may be many years before the case is finally closed. And again. when a case is settled. there are often agreements made about confi dentia lity of the sett lement and the case itself. The engineer should obtain written perm ission from the attorney to refer to the specific case when the engineer follows up the case to make safety recommendations in pro­fess ional journals or in presentations.

S ummary

In practicing forensic engineeri ng, you are providing professional engineering services. Follow the Code of Ethics. as you would in providing any other type of service. When you are on the stand as a n expert witness, you ca r ry the reputa tion of eve r y othe r profes sional e ngin eer on yo ur s houlders . BE PROFESSIONAL.

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Depositions

I. Answer questions truthfully in as few words as possible.

2 . Do not elaborate or volunteer information.

3. It is natural to be nervous at the start. Relax and remain professional.

4. A "sense of humor" is out of p lace in a deposition. Remain professional­a remark that is said in j est might have an adverse impact when it is read in the transcript.

5. Do not lose your temper. What you say is recorded.

6. Do not use expressions or nod your head. The stenographer cannot tran­scribe motions. Try to be a11iculate w ith words. Simple declarative sentences and words often are most benefic ia l.

7. Do not ta lk to opposing counsel "off the record."

8. If interrupted by another question fin ish answer to the orig inal question first. Do not be embarrassed to ask for a question to be repeated.

9. Do not waive the reading and signing of deposition. Before you sign it read it and make sure it reflects your statements. O nce you sign. you consent to agreement of its contents.

I 0. Remember the axiom " Lawyers do not ask questions to which they do not al ready know the answers."'

I I. Answer YES or NO questions w ith YES or NO. or I don·t remember or I don"t know.

Do not ramble on with lengthy answers to sim ple questions. You are there to impart knowledge. not to impress others w ith your knowledge.

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NSPE

This document is one o f a number of publicat ions developed and produced by the Professional Engineers in Private Practice Division of the National Society of Professional Engineers. It addresses a specific area of practice but one which is becoming more and more signifi cant in our pro fession. Other PEPP publica­tions address other aspects o f the practice. All are designed to ass ist the prac­titioner in the provision of professional services in an effective manner. This publicat ion, as are all PEPP publicatio ns. is in keeping with the mandate o f the professional society.

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9. Be aware that on cross examination, you are largely on your own. It is usu­ally necessary and desirable to include explanations and qualifications in your responses to questions. Do so courteously and matter of factly, bearing in mind that as an expert you have this right. While your attorney will have an opportu­nity in redirect examination to go over points raised in cross examination. the lapse of time will result in loss of continuity, concentration, meaning and emphasis.

1 0. Keep your emotions, particularly anger, under control. Derogatory remarks or reflections on your work and ability may be made. Any display of anger or any confused or erroneous response on your part will tend to discredit you in the eyes of the court and jury and possibly will create misunderstanding of facts and opinions expressed in your testimony. In a tough cross examination an adversary attorney may attempt to entice or provoke you into an emotional response where you might appear biased or make some exaggerated statement that can be seized upon to discredit the rest of your testimony. Do not fall into the trap.

11. Use copies of reference material, data and standards during your testimony at the trial and furnish copies for exhibits and retention by the court. Your per­sonal references and standards should be retained in your files. Use your best judgment as to what documents and files you bring into court as they may be subject to search and seizure.

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Courtroom Participation

I. Accept the fact that the attorney in the case conducts your part of the trial.

2. Be prompt and available when requested. Schedule well ahead of time and keep flexible. Try to determine the time span for which your presence will be requested. This can vary from an hour to many days or weeks depending on your role. Normally one or two days should be adequate but the appearance almost always extends longer than anticipated.

3. Dress neatly and businesslike. Be unobtrusive throughout.

4. Be courteous. Speak with clarity. Adjust your voice level to the courtroom acoustics. Try to visit and get a "feel" of the courtroom prior to testifying.

5. Since you will be speaking for the benefit of the judge and jury, address the jury directly at least part of the time, particularly when making key statements. Be certain the jury can hear you. When displaying exhibits, do so in such a manner that they are clearly visible to each member of the jury. Use lay termi­nology to the greatest extent possible. Use technical terms only in a context which defines them by their use. If necessary, use analogies, descriptive ges­tures, or actual demonstrations, if prepared, planned and approved by the attor­ney in the case.

6. Be aware that, while courtroom demonstrations can be very effective, the danger of an abnormal or accidental result cannot be overlooked. Review in detail with the attorney in the case the meaning, value and potentialities of any recommended demonstration. It may be necessary, in some instances, to actually construct and prepare the demonstration for a full-scale review with your attorney before a decision can finally be made relative to its use in the courtroom.

7. It is imperative that you pay close attention to every question asked you. You must remain alert, not letting your mind wander or dwell too long on past questions and answers. Do not anticipate the questions too extensively and do not answer as if you had anticipated them. Answer briefly and in accordance with what was asked. Volunteer information only as required to qualify and explain your answers and then only when essential to your opinion or to empha­size a factual point related to the questions. If you and the attorney in the case have prepared properly for the trial, on direct examinations you will probably be asked further questions to permit you to expand and explain pertinent points in a logical and precise manner.

8. If you do use an exhibit, have it prepared well ahead of time and with the full knowledge of your attorney for trial admission. Be prepared to draw sketches free hand on large paper pads. Blackboard and chalk are sometimes prohibited.

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Introduction to the Third Edition (2001)

In 1980 a committee of the National Society of Professional Engineers (NSPE) Professional Engineers in Private Practice (PEPP) on forensic engineering cul­minated a two year examination of the role of the professional engineer in liti­gation and arbitration by revising and expanding an existing NSPE/PEPP document to provide guidance to the professional engineer serving as an expert witness. The work of that committee, headed by Marvin M. Specter, P.E., L.S., resulted in a publication, Guidelines for the P.E as a Forensic Engineer, which has proven to be of value not only to professional engineers but also to the legal profession and others who must work with professional engineers in the appli­cation of their technical competence and professional expertise to the problems ofthe law.

Since the publication of Guidelines for the P.E as a Forensic Engineer, there have been minor changes in the Code of Ethics of the National Society of Professional Engineers and a significant increase in the number of professional engineers serving as expert witnesses. The guidelines were published by NSPE/PEPP in 1980 and republished in 1985. Also, in 1982, the National Academy of Forensic Engineers (NAFE) was incorporated and granted Chartered Affinity Group status by the National Society of Professional Engineers. Marvin M. Specter, P.E., L.S., who chaired the PEPP Forensic Engineering Committee which reissued these Guidelines for the FE as a Forensic Engineer, served as the Founding President of the National Academy of Forensic Engineers and since 1999 has been Executive Director of NAFE.

The Guidelines as printed herein are unmodified from their original drafting, it being the view of the NAFE that they have stood the test of time (more than 20 years) and are still valid. The NAFE is appreciative of the permission of NSPE and assignment of the NSPE copyright for the purpose of reprinting by NAFE.

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Introduction to 1980 Edition

In recent years there has been an increasing demand for engineering services in connection with litigation, arbitration actions and in contract matters requiring input from both the legal and engineering professions. The engineers who per­form these services for, and in concert with, the legal profession derive from virtually every practice and technical discipline of engineering. Those who are most competent in the application of their technical engineering background to the problems of the law have come to be known as "Forensic Engineers," in addition to their basic engineering disciplinary titles ("civil, mechanical, electri­cal," etc., etc.).

Also, there has been an increasing recognition by courts and all those involved in legal processes of the special value of the expert engineer whose competence has been validated through the legal process of examination by the state, and who is registered for engineering practice by the state. Thus, the "Forensic Engineer," of whatever academic discipline, is now also very likely to be regis­tered as a "Professional Engineer."

In addition to an increased recognition of the strength which professional engi­neering at the competence level of the forensic engineering expert adds to the client's legal position in such traditional areas as construction contract disputes and in highway and construction accident litigations, the legal staffs and trial counsel for manufacturers, and for insurance carriers as well as plaintiffs' attor­neys have greatly increased their reliance on the forensic engineer as product liability suits have proliferated. Accident reconstruction and arson investigation studies and testimony have also had a substantial increase in response to a social trend toward litigation, and an upsurge in arson for profit and arson as a form of political or social protest.

In a civilization whose physical being is based on engineering, the social trend toward consumerism, paired with an increase in litigation, has impelled a need for the highest standards of engineering competence to operate in the public view, subject to the sometimes highly critical examinations which are part of the legal process. Thus, the forensic engineer.

In earlier years engineering experts were drawn principally from university faculties and research staffs of large corporations. Engineers in private prac­tice have gained increasing recognition because consulting engineers, as independent experts with strong practical experience backgrounds, are most likely to be viewed as being competent and unbiased on the critical engineer­ing issues being examined or litigated these days, and, therefore, are very likely to be persuasive witnesses when their professional opinions and judg­ments are presented.

4

8. You should receive a regular fee for the time you spend in giving a deposi­tion. A per diem basis is recommended. In some cases the deposing attorney may tender you the nominal expense and witness fee; as this is completely inad­equate, it should be returned to the sender or credited to account on a proper billing. Your client should guarantee that you receive your regular fee; it is rec­ommended, however, that the attorney requesting the deposition pay your fee.

In the event you are subpoenaed as a "witness of fact," i.e. to testify of your observations in a given situation (but not as an expert), you have the same obli­gation to appear as if you were a layman, and probably would only be paid nominal expenses of travel, depending upon the law in effect in that particular jurisdiction. When you are not appearing as an expert you should abstain from answering questions which require the expression of professional opinions, judgment or experience, or the "Operation of Mind."

9. Inspection by others of evidence in your custody is a frequent situation. If asked to witness such inspection, do so diligently, being courteous, cooperative and helpful to others in their efforts to determine the facts to their satisfaction. Alterations to evidence may be reasonably required or permitted and may occur inadvertently or deliberately. In any event, make notes and records of all such alterations. If you are denied access to items in the custody of others when, in your judgment, their inspection by you is required to determine or verify the facts, you should make your position known to those in authority and immedi­ately contact your attorney, refraining from further action. Arrangements for inspections should, when possible, be understood and agreed to by all interested parties prior to an inspection.

I 0. You are obliged to safeguard items of evidence when you have custody of them. You should obtain a dated itemized receipt before transferring any item of evidence to another party. Such transfers should be made only with the full knowledge and authorization of the attorney in the case.

11. As an expert, you may find it necessary to conduct tests; you may find it necessary to divide them into different classes, such as "preliminary" and "final for the record." Preliminary tests are necessary for such reasons as establishing test procedure, parameters, and factual details not previously known but neces­sary for a proper test. Be aware that the "adversary system" in our courts may inadvertently oblige you to reveal the results of tests other than those which are "final for the records." Therefore, it is recommended that judgment be exercised as to the type and extent of records and usage made of preliminary test results. In some cases, it may be best to treat these informally, either with no records or labeling them for what they really are, listing results only as pertinent for defin­ing the final test procedures. As an expert, you should avoid using preliminary test records in court since they may be misunderstood or misused.

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Procedural Problems

1. Keep records, with dates, of inquiries for services from potential clients. In your responses to such inquiries, and in your records clearly state the conditions for your retention.

2. If you receive more than one call on a single case, a first-come, first-served policy is recommended. In the event a subsequent call is received relative to a case on which you have already been retained, inform the caller of that fact at once, terminate the discussion immediately and notify your client of the call.

3. While you will not want to spend a significant amount of uncompensated time looking into a case, it is desirable to respond sufficiently to be briefed on the circumstances and to advise the prospective client as to your competence, availability and probable charges and expense.

4. Be aware that if you are retained on a case, you will be obliged to spend a considerable amount of time talking with, explaining to, and otherwise assisting the attorney in the case. You will probably be asked to help prepare questions and answers (interrogatories) to related case circumstances. On occasions, you will be asked to pose a series of questions, the answers to which will guide the collection of factual knowledge.

5. If you are served an unexpected subpoena, receive it courteously and sign a receipt for any expense (cash or check) as may be reasonably requested. Inform the attorney in the case immediately advising whether you will be available on the date and time specified. If you have made firm, prior and conflicting plans, the attorney in the case should be able to negotiate an alternate time.

6. If you are served a subpoena it will most likely be for the purpose of taking your deposition, which is essentially a series of answers by you to questions from various attorneys including your own. Your answers will be taken under oath and for the record and can be quoted later at the trial. Since no jury will be present and since the transcript will be ambiguous with respect to pauses, you should take ample time in answering questions. You may not have an answer at the time and should so state, even though you expect to determine the answer later.

7. If you are asked to bring your notes, work records, reports, calculations, photographs, or other data with you for the taking of your deposition, it is recommended you advise your attorney of this request. ("Your" attorney may be your client, your client's attorney or your personal attorney.) In any event, that individual is responsible for your legal welfare during these proceedings. In return, you should follow the attorney's requests, advice and demands at this juncture as to whether to produce certain documents and answer specific ques­tions. Questions of law and procedure are involved which only the attorney is qualified to explore. If you are threatened with ''contempt of court'' by oppos­ing attorneys, let your attorney handle it.

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While this publication has been drafted for the particular use of the independent expert, the principles and methodology explained herein should be of value to those engineers employed by industrial firms, the insurance industry, construc­tion companies, government agencies and public interest groups. It is the hope of the committee that the information contained herein will also assist the mem­bers of the legal profession and professional managers and executives to under­stand the value of competent forensic engineering and how best to utilize the forensic engineer.

Respectfully submitted.

Marvin M. Specter, P.E., L.S. Chairman

Paul E. Prltzker, RE. Allan D. Morris, P.E. Guy S. Hammer. II. EIT Arthur A. DeFraites. P.E. Forensic Engineering committee NSPEIPEPP (1978-80)

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General

I. Have a clear understanding with your client regarding such matters as Client Relations coordination of your work with that of others, the person to whom you should report, and as to who will be responsible for payment of your fee and related expenses. Clients should be encouraged to discuss fee arrange­ments during their initial request for services.

Clients purchase services, not insurance. Professional service is a "work prod­uct of the mind." Those who engage professionals cannot expect infallibility but they can rightfully expect reasonable care and competence.

Rules vary from one jurisdiction to another. Recognize an attorney may restrict dissemination of your findings and in other areas your work product may be discoverable.

2. Make sure you are competent to deal with the subject matter of the case. Recognize that in many cases the actual problem area may not be well defmed initially and thus your service in effecting its definition is of considerable value.

Abraham Lincoln is quoted as stating "A Lawyer's Time is His Stock in Trade." That is true of forensic engineers. A potential client may want a "quick" infor­mal opinion as to whether or not you can testify favorably.

This might be in effect a quest for "free advice" critical and valuable in management of the case. Should you answer Yes" the potential client is armed for a strengthened negotiation to force a more favorable settlement short of trial due to the threat of your potential testimony. Should, however, your answer be "No" you provide the opportunity to seek an early settlement on the most favorable terms before the weakness of the case is fully revealed by the discovery legal process. Experienced forensic engineering practitioners fre­quently request a retainer from a new client to assure they have a commitment from a client adequate to allow them to make even "preliminary" value judg­ments. An expert who gives "Free Advice" may often discover that potential clients feel that is all the advice is worth. In the field of professional service there is no shortcut to excellence.

3. Give honest, impartial, loyal and professional service. Your responsibility is to be loyal to your client within the framework of ethical practice, which places truth above all other considerations.

It is your expertise, as an experienced engineer, upon which attorneys, judges, insurance personneljuries and other lay people rely. Do not hesitate to advise and insist on retention of a specialist by your client if this appears necessary and advisable.

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I 0. Preserve the chain of custody of all significant items to insure their positive identification and knowledge of their physical condition.

II. Provide the attorney in the case with a resume of your education, work his­tory, registrations, professional affiliations, and societal and peer recognitions, and related experience, patents and publications, and with any other information which will assist to qualify you as an expert for the purposes of your testimony.

I2. Strongly recommend that you and the attorney involved conduct a thorough review and analysis of your testimony prior to the trial. Establish the sequence of questions, clarify responses, avoid ambiguity and insure to the degree possi­ble that information is presented in lay terms. Establish in advance the points at which items of evidence and exhibits will be introduced. If this involves a wit­ness other than yourself, that individual should be familiar with the planned pro­cedure. During this exercise be mindful of and utilize the opportunity to function in a Devil's Advocate role which frequently provides an opportunity to evaluate a given set of circumstances from a different perspective.

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Investigations and Preparation

I. Express an opinion only when it is founded on adequate knowledge. This means, in most cases, that a substantial detailed investigation and study must be made.

2. Inspect the site and evidence personally whenever possible. Witness all tests where practical and have them made to your instructions or be prepared to have the tester called as a witness. Understand the test results and their limitations.

3. Verify that you are qualified and competent to deal with the pertinent sub­ject matter. Inform your client if you feel that a specialist should be retained either as a replacement or in conjunction with yourself.

4. Make thorough detailed inspections, taking dimensions and other data to provide documentation and study material. Take or assist in obtaining profes­sional quality photographs and the thorough documentation and witnessing of them so that they can be legally admissible when needed.

Consider benefits of color photographs in lieu of black and white. In arson investigation in particular use of color photography is beneficial as it illustrates colors that can identify cause and effects for the investigator.

5. Review all pertinent depositions, manuals, standards, related hardware, lit­erature, design drawings, and specifications.

6. Recommend to your client the need for, and make, all calculations, analy­ses and tests necessary to establish and confirm an opinion. Advise your client of the possible consequences if such work is not authorized, and performed in a competent and timely fashion.

7. Recommend and explain to your client the need for timely preparation of trial exhibits and demonstrations. Cooperate in scheduling this work so as to minimize the expense to your client. Explain to your client their probable value, either in negotiations or trial. Recognize the attorney in the case will be the final judge as to whether to use an exhibit or demonstration in the trial proceedings.

8. Do not exaggerate to explain or clarify a point on an exhibit. Be very careful of charts and curves relative to scale and boundaries. Do not use or prepare mis­leading exhibits.

9. If it becomes necessary to take evidence into your custody to preserve it, obtain a witness, photograph the evidence, and record its prior condition and the circumstances under which it was obtained. Use registered or certified mail for shipment of evidence, with return receipt to provide proof of transmittal.

10

Advise your client of the nature of your findings and their possible or probable effect on the outcome of the case. Such information is not to be divulged to oth­ers unless you are required to do so by proper legal procedures.

4. Keep your client fully informed regarding work progress and charges. Do not submit a written report unless and until such a report is requested by your client.

Maintain calculations, test results, and file data as confidential but in proper form for use later when memory may have failed.

5. Participate only in honest proceedings. Disassociate yourself from any endeavor which is or may appear to be fraudulent in nature but do not, in your relations with your client, assume the role of judge and jury. It is permissible to honestly assist a client in efforts to establish where and to what extent liability lies. Further, you may advise the client, to the best of your ability, as to the best course of action. If the ultimate decision is in doubt and liability appears to reside unfavorably with your client, it is imperative that you bring this informa­tion, in its clearest terms, to your client's attention.

7

Financial Arrangements

I. The Code of Ethics of the National Society of Professional Engineers pro­hibits the use of a contingency fee basis if payment depends on conclusions related to the engineer's professional judgment. That is, the opinions expressed by the professional engineer acting as an expert witness must be independent of the possible outcome of the case involved. This ethic applies whether the ser­vices are provided for your employer or an outside client.

So that there is no doubt as to the basis of service by the expert, the agreement for services to be rendered should explicitly state that "payment to the engineer shall be made promptly, and shall not be contingent upon the results of any legal action. arbitration or settlement"

Be aware that laws forbid the practice of "champerty," which means the subsi­dizing of all or part of a lawsuit, either directly or through payment of expenses of the litigant, in return for sharing in the benefits of the lawsuit if the party sup­ported is successful.

2. Provide your client with a detailed fee schedule before beginning your ser­vices. Obtain an advance retainer unless experience indicates otherwise. A retainer should be adequate for the scope of service anticipated. Those seeking "free advice" should be discouraged since a forensic engineer must allocate ade­quate time to prepare value judgment of significance. All parties are best served when a written agreement is signed that sets forth the services to be performed, the billing rates, times of payment, service charges for late payment and identi­fication of the entity responsible for the guarantee of fees. It is not unusual to obtain a personal guarantee since corporate default can negate opportunity to receive payment notwithstanding a written commitment.

3. Submit monthly invoices, particularly if substantial expenses are incurred, including itemized summaries by calendar dates, of your services. The invoices should show overall figures of hours and days spent on the assignment and the fee therefore computed in accordance with your standard fee schedule. The invoice should list expense items of significance which are agreed to for reim­bursement.

4. Advise your client you expect prompt payment on your invoices. Follow up if required. Payments should be current prior to your appearance for any sworn testimony or recorded statement. Although it may not be your feeling at the moment, an astute adversary attorney can leave a jury or other determinative body with the impression that your testimony is not independent and impartial if it is ascertained that you are waiting for substantial fee payments.

8

5. Charge fees which are commensurate with the professional services fur­nished. Do not be influenced to reduce fees by the presence of special facilities or other circumstances available to you on an advantageous or "free" basis.

Apply your fee schedule uniformly to all clients and all assignments of a simi­lar type. In general the rates for forensic engineering assignments should be at or above rates for routine work not of such special demand.

6. Advise your client well in advance of the estimated total costs through trial of your services and thus establish the option of consideration and possible uti­lization of other alternatives.

Since legal proceedings frequently are subject to adjournment and delay for rea­sons unrelated to the expert witness it is best that payments be based on a per diem rate rather than lump sum.

Also, the time period for a particular case may extend over a number of years, from the time the engineer is frrst contacted until the time the case is dropped, settled, or tried. In this sometimes long time period, because of inflation or other reasons, the engineer's time charges may increase. The engineer should decide whether or not to maintain a constant time charge fee, as of the time of first engagement on the case, throughout the case, however long it may be. If the engineer has a policy of periodically adjusting the time charge fee, this pol­icy should be made known to the client at the very outset; and an appropriate provision should be made in the agreement to cover escalation.

9

,, l I I

Contingent Fee Practice of Forensic Engineering

. is- -Uneth-ical

National Academy OF

Forensic Engineers

January,2005

NSPE Boon! of Ethical Rll'iiew 12/3111)3 - Approved

CaseNo. 03-13 PaQO 5

E..:h opinion Is ln!endod uguldonce to indivlduol proctking ·~t$. sludents ond lt>e public. In TOQOttlto lt>e question of oppkotion of tho NSPE Codo to ongln-mg orgonlzotion• (e.g., oorporotions. porlnerahipo. •oJ..pn>prietorshlps, govemmont •flln'*•. unlvera/ly engineering doporlmorr/1, o/t:.), tho opeclffc busi,.,.. form or typo ohould not nogoto nor do/roc/ from tho conlonnonce of lndMduols to tho NSPE Code. Tho NSPE Codo de•ls tMth prT>fu>ionot servke:o-vrl!k:h must bo porfonnod by rrtolper:rons Roof-• In tum omblish ond lmplem«rr policios wiiJJin buslnoa ~

This opinion lo lor oducotionol purpos .. only. II moy be reprinted without furtho< ponnl$slon, pn>vldod 111•1 IIIIo slllemen< Is lncJuded befrxe 01' 1/tfJr the twxf of the c.se end thet 1pproprl1te •trribut#on is provkJIKJ to the N•tion•l Soc#ety ol Profes$ion•l E"!!IMers' Boottl of Elhlul Ro!Mw.

Visl..,..._nspe.Olll&nd loam how to ot>lain additional NSPE ()pinions (or caN 801>--41 T-4348}.

12

m Na~onal

Academy ol

Forensle Eng!nccn

l<r--

Board of Directors

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tii'RlSIDENT IUCT ~•loeN, Woldel, P.E. I SO J ennl• L• n• Fewt._.d, CT 011124 12031 255·11510 ,,. 255·1110

II SCNIOit tnCf/'ttlSIOlNT John M. Cetden, P E. 3 Ot t.dtrv Court 0\.wham. NC 21703·3914 t9 19) 596-IISl Fu 59&- 11U

II VICE PRESIDENT H Boulllt Kelley, Jr., P.f 11 54 u. w.non Ao•d. POD ' 7488 St . l out , MO 03132 t ) UJ SSt- 2544 F•• 509- 2087

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II MST H ESIDENr Mont • L.. PfWIIDs. Ph.D •• P.E.• 25898 Hlbiscut Onve P11\. A•Pfds, MU 56470 12111 732·0 350 Fu

II DIRECTOR AT LARGE loVII E. HO""t• tth, P E. 100 c;,.n l A•n nu1 U•w Provld• nc., NJ 0 7974 HKII I 4fl4-o1405 Fu 771·1822

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NAfl HONOilfS: E Joyu 0•-on. fovndrr t nd E••t ut"'- Drr•ctor IIS61· ' 9JS I

National Academy of Forensic Engineers® Chnrurtd Affinity Group of tht Nmional Socit ry of Proftssional Enginttrs (NSP£} Charttr Mtmbtr oftht Council of Enginttring and Scitnllfic Sptcia/ry Boards (CESB}

P1ea.sc reply lO: ®

Sept ember 3, 2003

Chairman William D. Lawson , P.E. and Members of the NSPE Board of Ethical Review (BER)

Dear Professional Colleagues:

With e ncouragement of Chairmen Lhota and Lawson we have this summer drafted an exposition (in the BER format) to illustrat e the important point that forensic engineering services shall not be done on a contingent basis. Review and input was obtained from s ome two d ozen s enior f orensic engineers of the NAFE leadershi p, inc luding past presidents of NAFE, the c urrent board o f directors and specific membe rs recogni zed by their writings to the "Engineering Times" on the s ubject. Advice was received from NSPE President Howard N. Blitman, P.E. who is an ac tive forensic enginee r and member of NAFE.

we , therefore, belie ve that the a t tached d ocument has been brought to a level wo rthy of your consideration and adoption to join the distinguished catalogue of BER decisions created over the years. Do not hesitate t o contac t me with any questions .

Respectfully submitted,

~~Sra:::=. M. M. Specter, P.E., L. S. NAFE Executive Direc t or

F.ASCE, F . NAFE, F . ITE, F. NSPE NAFE President 1982-3 NAFE Founding President 1982 - 3 CESB President 1993 "NSPE Award" Recipient 1986

c c : Howard N. Blitman, P.E., F.NSPE Olof H. Jacobs on, P.E. Arthur Sc hwartz, Esq . NAFE BOD/ PP

,,

2

NSPE Boatd of Etbic:al Review 12131103 -Approved

Case No. 03-13 Paga4

Any agreement for professional service which provides a substantive incentive related to the results of the case to a witness who is brought to the court for objective testimony Is contrary to the interest of the public. No matter how well Intended the expert witness may be, and though sincerely believing that he/she is objective and unbiased, the appearance Is clearly given to the public (the court and the jury) of biased or unethical testimony.

Nor is the unlikely possibility of not revealing a contingent arrangement an acceptable substitute for complete candor. The penalties for deceptive testimony range from having testimony stricken from the record to various court sanctions and even to felony conviction for perjury. Rigorous cross-examination of experts is typical and includes attacks on credibility, Including fee arrangements. Objective unbiased testimony will diminish the effectiveness of such attacks. Non-contingent service is an important element In the credibility of the expert.

The engineer is not precluded from providing service on a charitable basis without payment for service. This is commonly called pro-bono service (latin: "for the goodj or pro-bono publico ("for the good of the public"). Engineers might well seek assurance that the attorney asking them to serve pro-bono is also serving pro-bono and that there will not later in the process be a conversion to contingent service.

For the engineer expert witness, contingent fee arrangements must be totally avoided. No matter how conceived of or contrived, they are unethical.

Conclusion: It would not be ethical for Engineer X to accept this "opportunity" to help his lawyer friend and the person who was Injured by providing engineering services in the manner described (a contingent fee arrangement). The engineer is not precluded from providing service on a charitable basis.

BOARD OF ETHICAL REVIEW E. Dave Dorchester, P.E., F.NSPE Louis L. Guy Jr., P.E., F.NSPE James D. Leslkar II, Ph.D, P.E., F.NSPE William J. Lhota, P.E., NSPE Robert L. Nichols, P.E., F.NSPE Harold E. Williamson, P.E., NSPE William D. Lawson, P.E., NSPE, Chair

NOTE: 111e NSPE BoBnJ o1 Ettricsl Review (BER) cansiden ethic8J cases imloMnf1 o/I1HJr msl or hypat/Jetic81 mstteta submittsd to it hom NSPE metnbet8. other~ publit; allfcltlh and membent ol the puiJiic. 1lle BER nM8ws each c:a$8 In the conteJct ollhe NSPE Code 8lld eatfitr BER ~IM& 7lle ftJcla conta/tled In each c:8$8 do not necessaniy tapi8S8ftt Bl1 of lhe pettinent facts rubmit!Bd to 01' nMawad by the BER.

11

~ llatloftal Bocletr of WJ' Proteulonal Enslnee,.~ NSPE Board of Elhlcal Ravlew

12131103 -Approwd Case No. 03-13

Page 3

the seNices on a contingency fee basis, with Engineer A receiving a percentage of the settJement or award. On the assumption that Engineer A's judgment would not be compromised by the contingency fee issue In that particular case, the Board found that it was ethical for Engineer A to agree to provide the services In question. However, the Board emphasized that any contingency fee basis arrangement must be carefully scrutinized by the engineer to make certain that the engineer's judgment is not compromised. The engineer must be free to provide objective, unbiased professional judgments and not be placed into a position in which he will be perceived as compromising his integrity and judgment in pursuit of a professional fee or continuing relationship.

One other point of background deserves mention; namely, that it is accepted practice in the legal profession for an attorney to represent a client on a contingent fee basis, this by virtue of the fact that attorneys are direct advocates for their clients in the US justice system. NSPE BER Case 00-10 describes just such a situation, where an engineer/attorney is retained on a contingency basis to provide legal services for a client. The question for consideration is whether a professional engineer may ethically provide engineering services in like manner under the provisions of the NSPE Code.

Turning to the present case, the facts dosely parallel those of BER Case Nos. 66-11 and 67-8; namely, a situation where the professional engineer's fee for expert engineering services would be dependent on the outcome of his or her work. Consistent with past decisions and NSPE Code Section 111.6.a, the Board contends that tee agreements should never be made on a contingent basis for expert witness testimony nor should the investigations, analysis, or reporting prior to testimony be contingent.

Published articles by the National Academy of Forensic Engineers emphasize that forensic engineers must guard against bias and test for hidden bias with meticulous care. The forensic engineer is not the advocate of a specific interest or point of view and may not be an interested party in the matter as to the outcome. As such, the forensic engineer can work for either side of any given case without ethical conflict That is why contingent arrangements are necessarily to be avoided. There is an overt bias in such an arrangement and objectivity may be lost.

10

fJ

PROPOSED BER CASE

Contingent Practice of Forensic Engineering

"X" is a PE with long experience in engineering practice who

has been called upon several times in recent years to investigate

accidents, and report on same where the responsibility was in

dispute or had pending litigation. In a iew instances he has been

required to testify under oath in a deposition and twice in court.

He is beginning to think of himself as a "forensic engineer."

A young lawyer, with whom he is friendly, complained about

the financial burden involved in starting a new law practice and

in particular that the contingent fee system meant that he would

not even get paid until each plaintiff's case was completed and

won. He said he was trying to help a poor old lady who had been

injured, but he had very limited cash flow to put out for

investigations and reports and she had none! If only PE "X"

would just help them along by producing a report, the lawyer

was certain he could negotiate a quick settlement and then the

engineer would be paid. In fact, the engineer could bill well

above his regular fees if only he would wait to get paid until the

case was settled. Anyway, the engineer had a lot of vacation time

coming and no plans of what to do. It would be like "found money"

said his young lawyer friend, and he could promise the engineer he

could get a lot more work.

Question: Should the engineer accept this "opportunity?"

Would it be ethical?

NSPEBER

3

REFERENCES:

The Engineer's ~

"To place ••• the honor and standing of the profession before professional advantage, and the public welfare above all other considerations."

The ~ Code of Ethics: Preamble:

"Engineering is an important and learned profession. As members of this profession, engineers are expected to exhibit the highest standards pf honesty and integrity. Engineering has a direct and vital impact on the quality of life for all people. Accordingly, the services provided by engineers require honesty, impartiality, fairness and equity, and must be dedicated to the protection of the public health, safety and welfare. Engineers must perform under a standard of professional behavior which requires adherence to the highest principles of ethical conduct."

I. Fundamental Canons:

5. "Avoid deceptive acts."

6. "Conduct themselves honorably, responsibly and lawfully so as to enhance the honor, reputation and usefulness of the profession."

III. Professional Obligations

1. "Engineers shall be guided in all their relations by the highest standards of honesty and integrity."

f. "Engineers shall not promote their own interest at the expense of the dignity and integrity of the profession."

5. "Engineers shall not be influenced in their professional duties by conflicting interests."

6.a. "Engineers shall not request, propose, or accept a commission on a contingent basis under circumstances in which th~ir judgement may be compromised."

4

NSPE Board of Ethlcat Review 12131103 • Approved

Case No. 03-13 Page2

frequency involves those relationships where the remuneration between the engineer and the client is based upon some contingent event or occurrence.

An eariy example, BER Case No. 66-11, considered the situation where an engineer expert was requested to provide technical advisor services for a plaintiff on the basis of being paid a percentage of the amount recovered by the plaintiff. If the plaintiff prevailed, fine, but if the judgment was in favor of the defendant, this engineer would not be paid for his services. Citing the language of what is now NSPE Code section 111.6.a and finding that this engineer could not ethically serve on a ·contingent tee• basis, the Board aisply noted that (a) this engineer's condusions might be influenced by the fad that he stood to gain financially by having his conclusions coincide with his personal interest In his remuneration, and (b) the engineer must not be in a position whereby the form of compensation might tend to prevent him from being completely impartial, or from rendering a full and complete report containing both favorable and unfavorable facts or conclusions.

Another eariy case (BER Case No. 67 -8) dealt with the situation where an injured workman Involved in a proceeding before a workmen's compensation board asked an engineer to appear before the workmen's compensation board as an expert witness on his behalf, but who daimed he was indigent and could not afford to pay for the engineer's services. On the same rationale as desaibed above, the Board of Ethical Review found that the engineer could not provide services on a contingent arrangement whereby he would be paid a percentage of the amount received by the workman; however, the engineer could, if he desired, provide such services on a free basis.

It is appropriate to emphasize that the Board has interpreted NSPE code Section 111.6.a to indicate that a contingent relationship is not per sa unethical but only those that may have the effect of compromJslng the professional judgment of the engineer. For example, BER case No. 93-5 recounts that a man, Smith, is killed as a result of an alleged defective product Smith's widow, Mrs. Smith, is unable to afford the services of an expert to investigate the technical issues relating to the allegedly defective product Mrs. Smith contacts Engineer A. a product design specialist who frequently provides forensic engineering and related services. Following a long discussion, Mrs. Smith requests that if it Is determined that a legal action should be brought against the manufacturer, that Engineer A act as Mrs. Smith's agent to direct the legal action on her behalf. She requests that Engineer A advise her regarding the selection and retention of an attorney, and oversight of the attorney's general approach to the case. Engineer A would not serve as an expert witness as part of the legal action. Since Mrs. Smith had limited resources, Engineer A, following considerable contemplation and thought, agreed to perform

9

NSPE Boatd of Eltllcal Review 12131103 -Approved

Case No. 03-13 Page 1

CON11NGENT FEE- PRAC11CE OF FORENSIC ENGINEERING

Case No. 03-13

Facts: Engineer X is a professional engineer with long experience in engineering practice who has been called upon several times in recent years to investigate accidents, and report on same where the responsibility was in dispute or had pending litigation. In a few instances he has been required to testify under oath in a deposition and twice in court Engineer X is beginning to think of himself as a "forensic engineer."

A young lawyer, with whom Engineer X is friendly, approaches Engineer X seeking help. The lawyer complains to Engineer X about the financial burden involved in starting a new law practice and in particular that the contingent fee system for legal work means that he will not even get paid until each plaintiffs case is completed and won. To put a finer point on it, the lawyer explains that he is trying to help a person who has been injured, but he has very limited cash to put out for engineering investigations and reports and the person he is trying to help has none! If only Engineer X would just help them along by producing a report, the lawyer daims he is certain he can negotiate a quick settlement and then Engineer X would be paid. In tact, the lawyer tells Engineer X he could bill well above his regular fees if only he would wait to get paid until the case is settled. Further, the lawyer tells Engineer X that this case would be like ''found money,• and he could promise Engineer X a lot more work like this.

Question: Would it be ethical for Engineer X to accept this "opportunity'' to help his lawyer friend and the person who was injured by providing engineering services in the manner described?

References: SeetJon 1/.4.8. - Code of Ethics:

SeetJon 111.6.8. - Code of Ethics:

Discussion:

Englneors sllaU c11sc1o$e all known 01 potential oontrictS of lntatost that coukl inltuent:e 01 BIJP881 to lnl1uence thoit judgment 01 the quality of fheit ~-

Eng/neefl l!haB not tequest. propose, 01 accept a c:omtnission on e conlingent basis under ciiCUmatsnces In which th&ll judgment may be comptomi$Cid.

The Board of Ethical Review has had several opportunities to review circumstances that involve relationships with clients and others which could potentially call into question the independent judgment of an engineer. Sometimes the facts and circumstances have related to contractual arrangements between an engineer and his or her client, and one of the areas that the Board has examined with nreat

8

4

"Guidelines" for the P.E. ~ ~ Forensic Engineer: The Engineer ~ an Expert Witness," NSPE 1980, 1985, republished by the National ACademy of Forensic Engineers (NAFE) 2001:

"Financial Arrangements:

The Code of Ethics of the National Society of Professional Engineers prohibits the use of a contingency fee basis if payment depends upon conclusions related to the engineer's professional judgement. That is, the opinions expressed by the professional engineer acting as an expert witness must be independent of the possible outcome of the case involved. This ethic applies whether the services are provided for your employer or an outside client.

so there is no doubt as to the basis of service by the expert, the agreement for services.rendered should explicitly state that "Payment to the Engineer shall be made promptly ~ shall not be contingent upon the results of ~ legal action, arbitration ~ settlement."

"Swmnarv:

In practicing forensic engineering, you are providing professional engineering services. Follow the Code of Ethics as you would in providing any other type of service. When ~ ~ 2!1 the stand ~ ~ expert witness, ~ carry the reputation of every other professional engineer 2!1 your shoulders. BE PROFESSIONAL."

"Journal of the National Academy of Forensic Engineers" "Ethical Pr'a'Ctrce of Forensic Engineering: Avoiding The Hidden Bias" by E. Joyce Dixon, NAFE Exec. Director, Dec. 1986. n:::-The forensic engineer must guard against bias and test for hidden bias with meticulous care. Bias has no place in the laboratory or in the field of forensic engineering. Results tinged with bias are spurious and fallible .••• The most important service one can give to the client attorney is to present to the jury and court the objective, unbiased evidence that one has obtained. It is important to be credible and the most important way to be credible is to present evidence that is not tinged with emotion and bias."

The NSPE Code of Ethics Applied to Forensic Engineering" E. Joyce Dixon, NAFE Exec. Director, June 1992: "The forensic engineer is not the advocate.of.a. specific interest or point.of view and may not be an interested party in the matter as to the outcome. Thus, the forensic engineer can work for either side of any given case without ethical conflict. That is ~ contingent arrangements~ necessarily to be avoided." (emphasis added).

5

"How The Forensic Engineer applies the intent of The NSPE Code of EtiircS"';'ii E. Joyce Dixon, NAFE Exec."Director, Dec:-1995: "The -fo~ensic engineer is not !n advocate 21 ~ specific interest or po1nt 21 view ~ ~ ~ be !n interested party in the ~ !.!, ~ the outcome. That is ~ continent fee agreemeiiti ~ necessarily to be avoided. There is an overt bias in such an arrangement and-objectivity m!Y be lost. (emphasis added).--

"Standardization News" ASTM Febr. 1987 ~does it Take to be ~Good expert Witness" M.M. Specter,PE-LS NSPE Pres. 1982-83, Founding Pres. NAFE 1982, Exec. Dir. 1999 "Well, you had better be an independent objective witness. As soon as you start looking like an advocate you are worse than useless to your clients and to yourself •••• The role of the cross examining attorney is to counter or impeach the opposing fact and expert witnesses. Every aspect of qualification and motivation is fair game, and vigorous questioning on the substance of the testimony is typical. The questions may, and the summarizations a1most certainly will, be thrust towards personal and professional repudiation of the expert."

Journal of Performance of Constructed Facilities" ASCE Technical Council on Forensic Engineering, Aug. 1987: "National Academy of Forensic Engineers," by M. M. Specter, PE-LS "Need to Avoid Bias: forensic engineers know they have to be accurate and candid in their presentations. Moreover, the forensic engineer must constantly guard against a very subtle peril, namely, his or her own personal bias. Experienced forensic engineers recognize this typical case as one which brings out the best of ethical practice and unbiased practice by the professional engineer in a way that reflects favorably on the entire practice of engineering."

6

Discussion:

While practicing engineers are well.advised to have written agreements for services to be rendered, therr agreements, written or not should never be made on a contingent basis for expert witness testimony nor should the investigations analysis or reporting previous to testimony be contingent. (Altogether these services are generally characterized as "forensic engineering.") Any agreement for professional service which provides a substantive incentive (related to the results of the case) to a witness who is brought to the court for objective testimony is contrary to the interest of the public. No matter how well intended the expert witness may be, and though sincerely believing that he/she is objective and unbiased, the appearance is clearly given to the public (the court and the jury) of biased or unethical testimony.

Nor is the unlikely possibility of not revealing a contingent arrangement an acceptable substitute for complete honest candor. The penalties for deceptive testimony range from having testimony stricken from the record to various court sanctions and even to felony conviction for perjury. Rigorous cross examination of experts is typical and includes attacks on credibility, including fee arrangements. Objective unbiased testimony will diminish the effectiveness of such attacks. Non-contingent service is an important element in the credibility of the expert.

Engineers do need to understand that their role as an expert to the court and jury is expected to be objective and unbiased. This contrasts with the attorneys' role which is properly dedicated to direct advocacy on behalf of clients. The engineer must not be an advocate or be perceived as such.

The engineer is not precluded from providing service on a charitaQle basis without payment for services. This is commonly called "pro-bono" service (Latin: "for the good") or "pro-bono publico" ("for the good of the public"). Engineers might well seek assurance that the attorney asking them to serve "pro-bono" is also serving "pro-bono" and that there will not later in the process be a conversion to contingent service.

For the engineer expert, contingent fee arrangements must be totally avoided. No matter how conceived of or contrived, they are unethical.

7