Vol. 2 No. 8		August 1983

Proving professional negligence is not easy. Few design solutions can be reduced to questions of right and wrong. The law recognizes that how you go about evaluating alternatives and formulating recommendations depends upon circumstances unique to every project you undertake. It requires only that you approach your work with a reasonable degree of professional care.

The results of your efforts may prove to be less than ideal, even less than satisfactory, and still have nothing to do with negligence. But, in those unfortunate situations in which questions of negligence are raised, it usually takes the help of another architect or engineer to put them to rest. No one else is in a position to form an opinion as to whether or not what was done falls within the broad range of alternatives that might be considered acceptable in the professional community in which you practice.

The "best" solution, whatever that might be, is not an issue. The issue is usual and customary care. As a defendant, this puts you in a favorable position. As an expert witness, it can put you on the spot, for serving as an expert can be a challenging task. It is not one to be undertaken without a good deal of careful consideration.

The negligence standard is part of a social contract between the profession and the public that goes back to the earliest days of the English Common Law. The public recognizes the fact that what you do requires the application of professional skill and judgment, often in the face of great uncertainty. It acknowledges the possibility of errors, and it generally will not hold you responsible for the consequences of those errors, so long as you exercise reasonable care. You are not required to be perfect.

You entered into this contract when you accepted your license to practice. It is not a bad bargain, but it does impose certain obligations in return. The public expects you to use your expertise to protect the public health, safety, and welfare. It also expects that, in doing so, you will place the public interest ahead of your own.

At times, this can seem to be something of a heavy burden, for it includes an obligation to maintain constant vigil over the profession itself. In fact, society has nowhere else to turn--only those with professional training and experience are in a position to differentiate between reasonable care and sub-standard performance. Thus, the inescapable need for some to serve in the role of expert witness.

The challenge lies in maintaining a very delicate balance. Somewhere between the "conspiracy against the laity," of which the professions have been suspected since time immemorial (not always without cause), and the setting of standards so high only an elite few would measure up, there lies the common ground on which the interests of the profession and the interests of the public converge. It takes mature judgment, complete objectivity, and great care not to compromise one or the other (which, in the end, usually compromises both).

It is not impossible to be overcautious--to so qualify an opinion as to create more confusion than clarity. But, this is not how the balance is most often upset. There is something about being an "expert," about being called upon to explain difficult concepts before a captive audience weighing important issues, that has a way of feeding an already well-nourished professional ego.

It can be difficult for some to resist the temptation to demonstrate technical excellence at the expense of unbiased and considered professional judgment. It can be difficult for others to keep in mind that ordinary and reasonable care is all that is required of any professional (few of whom consider themselves "ordinary" in the first place). The unfortunate result is that standards can easily be set at the extreme.

What would you advise one of your colleagues struggling, perhaps for the first time, with a decision about serving as an expert witness? Here are some considerations you might address:

1. Be certain, first, that you are an expert. Before you agree to serve, ask yourself if you truly understand the prevailing standard of care as it applies to the circumstances at issue. Remember, you have to know what the average architect or engineer might reasonably have done under similar conditions before you can form an opinion about what, in fact, was done. If you cannot think in terms of ordinary skill and care, you are probably the wrong expert.

2. Agree to serve only if you are convinced that the interests of both the profession and the public compel you to become involved. Keep in mind that a wide range of motivations, some good, some less than admirable, can be advanced under the noblest of banners. A court of law is no place to sort out reasonable differences among competent professionals about how high the standard of care ought to be, nor is it an appropriate forum for seeking new work.

3. Make certain you understand the constraints imposed on the original design. There are very few problems that could not be prevented if approached with the 20/20 hindsight you bring to the dispute. Sometimes this is difficult to keep in mind, especially so in the absence of information about the unique circumstances under which the work was performed in the first place.

4. Be prepared to resist pressures to arrive at the conclusion desired by those who are going to pay your fee. You have an obligation to uphold reasonable standards of professional performance, but you have no obligation to meet the expectations of the attorney who retains you-other than to render an objective opinion about the circumstances you have been asked to evaluate.

5. Resist the temptation to make judgments based on your own high standards. They are not relevant to the problem at hand. You may be the very best architect or engineer in the known universe, but you are not present in the courtroom to explain how much more effectively the tasks in question might have been performed. You are there to explain what usual and customary care would be under like circumstances and to express a considered professional opinion as to whether that level of care was met.

6. Finally, know what to expect in court. Recognize that by serving as an expert witness you open yourself up to challenge in an adversary arena. Your presence invites inquiry by opposing attorneys into your knowledge, your qualifications, and the rationale underlying the opinions you advance. If there is room to discredit your testimony by casting doubt, you can be sure an attempt will be made to do so. Where even the slightest opening is found, it can be an unsettling and extremely unpleasant experience. In the face of it all, you have to remain composed, objective, and highly professional.