Vol. 8 No. 1		January 1989

Whose expert is more credible? That, very often, is what it comes down to at trial. It takes an expert witness, another professional qualified to render an independent judgment about the facts and circumstances at hand, to sustain allegations of negligence against an architect or an engineer. It takes yet another expert to defend against those allegations.

Experts frequently differ in their opinions about the same set of facts and circumstances. Often, their differences are based on forthright and considered professional judgment. Occasionally, however, extraneous factors intervene; money, professional egos, limited experience; and dispassion gives way to advocacy. When this happens, the system can easily be abused. From time to time, it has been.

Challenging the credibility of an expert before a lay jury can be tricky business. The sympathies of the jury are likely to be aroused if a challenge is perceived to be ill-advised or unfair. This risk is high where there is confusion as to the limits of propriety. It can be reduced where the performance of the expert can be measured against an objective frame of reference.

It was with this idea in mind that ASFE, The Association of Engineering Firms Practicing in the Geosciences, initiated an effort in 1985 to develop a code of conduct for expert witnesses. Its goal was to establish a set of national standards against which the performance of experts might reasonably be evaluated. Its objective was to pave the way for curtailing abuse.

ASFE's original concept was refined through an extensive process of review and negotiation. This process engaged all of the major professional societies and associations representing architects, engineers, landscape architects, and planners in the United States. It resulted in the publication, in mid-1988, of "Recommended Practices," a concise statement of principles aimed at promoting service without bias and enhancing professionalism among experts.

"Recommended Practices" carries the endorsement of sixteen professional organizations, including the AIA, ACEC, NSPE, and ASLA.

There is nothing earth shattering about the recommendations; they simply articulate what most of us would agree is a common sense approach to a professional responsibility of great consequence. Nor are they intended to be enforced by any of the endorsing organizations. It is hoped, however, that the profession-wide consensus they represent will, in fact, serve as a frame of reference; one which might effectively be used to test and, if appropriate, challenge the performance of experts in their investigative activities, in depositions, and on the witness stand.

Now, those who would venture their opinions in a court of law about the professional performance of others may have their attention directed to recommendations concerning their own professional performance, recommendations endorsed by the vast majority of design professionals in the United States. They may be asked whether and to what extent those recommendations have been followed. They may be invited to justify any alternative course of action they have chosen to pursue. Those who cannot may well have a difficult time of it for the balance of their stay in front of the jury.

Here are the "Recommended Practices":

1. The expert should avoid conflicts of interest and the appearance of conflicts of interest.

2. The expert should undertake an engagement only when qualified to do so and should rely upon other qualified parties for assistance in matters which are beyond the expert's area of expertise.

3. The expert should consider other practitioners' opinions relative to the principles associated with the matter at issue.

4. The expert should obtain available information relative to the events in question in order to minimize reliance on assumptions and should be prepared to explain any assumptions to the trier of fact.

5. The expert should evaluate reasonable explanations of causes and effects.

6. The expert should strive to assure the integrity of tests and investigations conducted as part of the expert's services.

7. The expert should testify about professional standards of care only with knowledge of those standards which prevailed at the time in question, based upon reasonable inquiry.

8. The expert should use only those illustrative devices or presentations which simplify or clarify an issue.

9. The expert should maintain custody and control over whatever materials are entrusted to the expert's care.

10. The expert should respect confidentiality about an assignment.

11. The expert should refuse or terminate involvement in an engagement when fee is used in an attempt to compromise the expert's judgment.

12. The expert should refuse or terminate an engagement when the expert is not permitted to perform the investigation which the expert believes is necessary to render an opinion with a reasonable degree of certainty.

13. The expert should strive to maintain a professional demeanor and be dispassionate at all times.

These principles are a useful guide for those who truly need help in resolving uncertainties about how to approach the task of serving as an expert witness. More importantly, they just may become the touchstone with which those who would test the limits of propriety might be challenged. If they are to serve this latter purpose, however, they will require widespread distribution, not only among architects and engineers, but within the legal profession, as well. You may want to see that your own attorney receives a copy.

"Recommended Practices" is available from most national and a few state and regional professional societies and associations. If it is not included on the publications list of your own professional organization, you can obtain copies for $5 each by calling ASFE at (301) 565-2733 or sending them an e-mail at ASFE@aol.com.