Should experts do forensic engineering investigative work for free? Would this jeopardize their objectivity or the justice system’s perception of it? (Ref. 1)
I have concluded that, in general, we should not and yes it would.
A possible exception would be a financially strapped client who otherwise might not have access to the justice system.
This question came up recently during lunch with a colleague who had referred an Atlantic Canada legal aid group to me. One of their clients had a problem the cause of which my colleague recognized was more in my area of expertise to investigate than his.
I was contacted by a student lawyer with the legal aid group and called to a meeting. I was told by an administrator almost before I could sit down, “We don’t have much money..!! What’s your fee?”
I told them my hourly fee and also referred them to the Fees page on my website. www.ericjorden.com/fees My schedule of fees is comparable to other senior professional engineers practicing forensic engineering in eastern Canada and, for that matter, elsewhere in Canada and the U.S.
They briefed me on the problem – an environmental failure, experienced by their client, the plaintiff. Also that they had a court date about six weeks hence.
One of their biggest problems – aside from the tight court schedule, was that they did not know the precise location of the structure alleged to have caused the failure. The location was critical to determining if the structure was the cause.
I outlined some of the tasks I would need to carry out in a forensic engineering investigation – including first locating the structure. (Ref. 2)
They said they would get back to me but I haven’t heard from them since.
Should I have said I would do the work pro bono instead of stating my fee?
In discussing this later with my colleague, he noted, “You’re doing the work for free for one party. How is that different from doing the work for a fee for one party?” He’s done work pro bono for the clients of this legal aid group feeling, “I should put back into the community”.
But we’re not doing the work for one party, we’re doing the work for the justice system. The one party is paying an expert to gather technical evidence to be submitted to the court. Also to explain the technical findings to the judge and jury, and to the counsel for the parties involved. And to do this objectively, thoroughly, and reliably. The justice system’s requirements for the expert to be objective are very clear. There are no qualifications on this objectivity. (Ref. 3)
But the justice system represents the community’s interests. Shouldn’t we from time to time put back into the community?
We must do this but not in this forum. The justice system’s understanding of where we are expected to come from as experts affects their perception of our actions. Lawyers are expected to be subjective and advocate on behalf of the client. Experts are expected to be objective and advocate on behalf of the truth.
In our society, doing something for free for someone tends to imply a closeness that would not be acceptable for an expert in forensic work, even if the closeness is only slight. There is the implication that we want to help someone when the clear implication should be that we want to help the court. The requirement that we ‘stay at arm’s length’ is compromised. If there’s any uncertainty at all about the objectivity of the relationship between the expert and the client there’s risk of being perceived as biased to the client’s interests.
We pay for goods and services in our society. We can’t get away from that. And you get what you pay for.
“Perception is extremely important.”, noted Alan E. Mitchell, a former lawyer in private practice and former Nova Scotia Minister of Justice. Alan was of this opinion in a recent discussion I had with him about the Senate and Rob Ford scandals. Perception applies across the board in human affairs.
We as experts must not do pro bono work – as a rule, even if we might want to as community minded citizens.
References
- Do forensic engineers jeopardize the appearance of their objectivity? Posted June 28, 2013 http://www.ericjorden.com/blog/2013/06/28/do-forensic-engineers-jeopardize-the-appearance-of-their-objectivity/
- Steps in the forensic engineering process with an Appendix on costs. Posted July 15, 2013 http://www.ericjorden.com/blog/2013/07/15/steps-in-the-forensic-engineering-investigative-process-with-an-appendix-on-costs/
- Rule 55 Nova Scotia Civil Procedure Rules