Role of the Engineer as Expert Witness

Definition of an Expert Witness

According to USLEGAL.com the definition of an expert witness is as follows:

“An expert witness is a witness who has knowledge beyond that of the ordinary lay person enabling him/her to give testimony regarding an issue that requires expertise to understand.”  USLEGAL goes on to explain,  “Experts are allowed to give opinion testimony which a non-expert witness may be prohibited from testifying to.  In court, the party offering the expert must lay a foundation for the expert’s testimony. Laying the foundation involves testifying about the expert’s credentials and experience that qualifies him/her as an expert. Sometimes the opposing party will stipulate (agree to) to the expert’s qualifications in the interests of judicial economy.”

Practitioner Seminar

Mike Drerup, P.E. of Walter P. Moore just delivered a great practitioner lecture on the topic to students in the AE 537  Building Failures class in architectural engineering at Penn State.  His lecture is a must see if you ever get the chance to attend one.  In addition to covering terminology such as “standard of care”, depositions, chain of custody on evidence, etc., Mr. Drerup discussed the role of the expert witness in three major categories.

  • Professional Practice
  • Business
  • Technical (Science & Engineering)

The lecture was all summed up and tied together through the use of two case studies to illustrate the process and to demonstrate the scope of effort and scientific study required for many forensic investigations.

ASCE TCFE Guidelines

In terms of guidelines related to the practice of forensic engineering for buildings and infrastructure, the topic is well covered in the publication Guidelines for Forensic Engineering Practice  (Guidelines) by the Forensic Engineering Practice Committee (FEPC), Technical Council on Forensic Engineering (TCFE) of the American Society of Civil Engineers (ASCE).

The Guidelines are organized into five general topics of forensic engineering.

  1. Qualifications: addressing commonly accepted education and requirements for forensic engineers.
  2. Investigations: illustrating the typical aspects of physically carrying out a forensic investigation.
  3. Ethics: discussing guidelines for the ethical behaviors of the forensic engineers.
  4. Legal: providing a brief overview of the court system as it applied to the construction industry.
  5. Business: relating the non-technical management side of forensic engineering practices and the marketing of forensic engineering services within an acceptable ethical scheme is encouraged.

An excellent follow up article on this topic authored by Robert T. Ratay was published in Structures magazine and can be downloaded using the link below:

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26 Responses to “Role of the Engineer as Expert Witness”

  1. Eric C
    December 12, 2012 at 11:24 pm #

    Thank you Mike for taking the time to lecture on a topic that is normally difficult for people to think about unless they have actually gone through it.

    I find it interesting to the point you made about when you were being questioned, you got the same question phrased several different ways hoping they would tie you up and say something that you shouldn’t have. Is this a normal approach for things of this situation? What way have you found best to deal with this other than knowing for sure what you are talking about?

    Also from the sounds of it, it seems like most of the time it can be determined who is at fault without the cases making it to trial which is beneficial to all parties involved. Has it ever gotten to the point where you had to look at one of your clients and tell them it was not worth it to press forward and take a claim to a trial?

  2. Evan L
    December 12, 2012 at 12:07 am #

    I would like to thank Mike for his presentation to our class. This was our first inside look into what it is really like to be a part of a trial. The role of an expert witness is not one to be taken lightly, and my guess is most engineers would rather not participate.
    It seemed that one of the keys to success is to make sure that you stick to your guns. They opposition’s main goal is to find some way to discredit you or have you discredit yourself. This is not always easy to do because we are humans and have to natural desire to win, thus, making it difficult to produce answers that may hinder our client’s case.
    Mike’s presentation helped me to realize that being an expert witness isn’t just about the case and the opposition it is also about withholding your own personal ethics while others try to get you to bend them.

    • Fangxiao L
      December 15, 2012 at 5:43 pm #

      I totally agree with you. That’s also one of the most important things that I learned from Mike’s lecture. Ethics in the real world is always a tough area, which has been challenging people all the time. To be a qualified engineer/designer, it is always essential to work with respect to ethics.

      I also found an interesting paper regarding with the ethical issues in being an expert witness:

      http://www.amstat.org/committees/ethics/linksdir/Jsm2004Kadane.pdf

  3. Ben B.
    December 11, 2012 at 9:45 am #

    Thank you Mike for your presentation.

    Working as an expert witness is a topic that we do not really cover much in our education here at Penn State.

    It seems to me that the most challenging part of being an expert witness is the conflict between the obligation to your employer and the obligation to give a full and accurate report. I really appreciate the desire to give a full and upfront account of what you believe will be in your report so as the give your advocate a chance to give his client the best possible case, but could not the choice to withhold all information including that which incriminates your client also compromise engineering ethics.

    I reread through the code of ethics at: http://www.nspe.org/Ethics/CodeofEthics/index.html
    and it talks about your obligation to both your employer and to present a full and accurate account. I guess you have to decide before you begin as an expert witness how much weight you plan to give each clause and stick with that decision.

  4. Gea J
    December 11, 2012 at 1:54 am #

    The presentation Michael Drerup gave about being an expert witness was very interesting and enjoyable. This is a topic that has not been covered within our program of study and it was very interesting to obtain some information on this topic.

    During the presentation, my knowledge was expanded on expert witness service, which consists of 3 categories: professional practice, such as ethics; business; and technical, which consists of science and engineering. I found it helpful when Mr. Drerup discussed the different terminologies such as standard of core, expert reports, the different types of testimony, and evidence and exemplars. Lastly, I learned the different types of analyses, which consisted of cause and origin; nature and extent; new versus preexisting; and responsibility.

    I would like to thank Michael Drerup for a well organized and informative presentation on being an expert witness. I learned a lot of valuable new information that I will be able to use throughout my structural engineering career.

  5. Emily W
    December 10, 2012 at 10:56 pm #

    Thanks again Mike for taking the time to speak to our class last week. Overall, it seems that consulting as an expert witness is a challenging area to get into as an engineer. After looking into the follow up article provided from Structures magazine, it brought a few more questions to mind. When an expert witness is hired to do an investigation and testify in court, do they sign any type of contract? For example, something that states what they can or can’t do during an investigation of a failure?

    Also, is it possible for both sides of a case to hire an expert witness in the same field? If this is the case, how are each of the witnesses determined to be credible if they have conflicting information in court? Since each witness is working for their respective client, I’m assuming each of their testimonies would sound relatively different.

  6. Xiao Z
    December 10, 2012 at 6:33 pm #

    Thank you Mike for your informative presentation on the role as an expert witness. It really informed us in how we as engineers can help in the legal system of our world. Being an expert witness is one of the main critical factors in court because it will ultimately decide which side will win the case.
    I know many of us asked this question already but I want to reword it a little. When Mr. Drerup said “We must present our findings and opinions without bias,” in the follow up comment, does that mean the expert witness will have to state everything regardless of which side he or she is on? Another question for Mr. Drerup on the comment you posted, “Several years ago I served as a court appointed expert on a case, with my bill split equally by the two opposing sides, regardless of my opinions or the outcome.” At the end of the case, will the party that loses the team pay all of your fees at the end?

  7. Seth M
    December 10, 2012 at 12:28 am #

    Thank you Mr. Drerup for presenting to the class about the role of the engineer as expert witness. I found your discussion to be very interesting and informative. In the second case study about the shower tile deterioration, it was stated that the contractor had built what appeared to be shown in the unclear detail provided by the architect. Mr. Drerup made the point that if the question would have come up as to whether or not the contractor should have known better, he would have had to say “yes.” In the end, the contractor was responsible for about 60% of the cost, and the architect 40%. Even with the evidence of the architect’s detail, the contractor was held most accountable.

    This goes back to the standard of care that was defined early on in Mike’s presentation. Any professional involved is expected to perform in a manner that is consistent with a similar, competent professional in the same time period and under the same circumstances. This standard is very interesting as the actions taken by, say, an engineer are evaluated as being negligent or not based on what practices are typical at the time as opposed to what a particular engineer should have known to consider or do according to their own specific knowledge and experience.

    • Gea J
      December 11, 2012 at 1:56 am #

      I agree. As professional engineers we must take our work seriously at all times and we must do our best as designers to ensure that our designs are as thorough and as correct as possible because if something were to happen to the structure we can easily be required to testify in the event a failure were to occur. That’s why it’s important that we as designers and/or forensic engineers take our time when completing our work and to try our best not to overlook important details in our work to ensure that the structure is as stable as possible to prevent future failure and/or if a failure occurred to ensure we thoroughly investigate the cause in order to prevent a similar failure from occurring again. As designers, it’s important that we have the ability to think forensically so that we can be better engineers.

  8. Mike S
    December 7, 2012 at 10:42 am #

    I’d like to thank Mr. Drerup for giving such an interesting presentation on a subject that we aren’t exposed to very often. It is likely that each and every one of us, as aspiring engineers, will be involved in some sort of legal issue throughout our career, and it’s important to have some background knowledge beforehand.

    I thought the whole concept of gray areas when choosing what to talk about and what not to talk about as an expert witness was very interesting. It seems that it’s always the intent to be 100% ethical, but it makes sense to keep quiet on certain topics if they don’t benefit your client–unless the issue is brought up, of course. But, I suppose every situation is different, and I guess we only know what we would do once that time comes.

    My questions, however, come from a different portion of the lecture. Mr. Drerup mentioned that if an engineer agrees to take a look at a case, he is paid for his time by the hour. Is this typically a negotiated amount between both parties? Also, could this amount vary from case to case based on specifics of the investigation? For example, if a structure collapses and there are site accessibility concerns or possible dangers on site, would the engineer typically ask for more compensation?

    Thanks again to Mr. Drerup for taking the time to present to our class.

  9. MikeP
    December 6, 2012 at 12:28 am #

    I’d like to thank Mr. Drerup again for his great presentation on being an expert witness and his introduction to the litigation process in the building industry. I had several questions regarding what was said during the lecture. Specifically, I was curious on the deposition outcome. What happens when the attorneys are able to bring the expert’s competency into question by getting them to give poor answers (rather than a true lack of competency)? Does it become almost impossible to have that expert go to trial and give their case, or can they still present it with a hope that it stands in court?

    Also, I was curious on how an engineer falls into an expert witness roll successfully. Is there professional training courses/texts that you are able to teach yourself with, or can you go view other litigation cases and learn from them firsthand? How exactly did you get into the role of an expert witness?

    • Jordan R
      December 6, 2012 at 9:06 pm #

      Mike P brings up an excellent point. I was also wondering about the proceedings were if an expert was “tricked” into giving poor answers. Is it the final word and to be used against them for the rest of the justice process?

      I sincerely enjoyed hearing everything Mr. Drerup had to say about being an expert witness. I find it very interesting and inspiring that structural engineers have a variety of options to pursue once they enter the workforce with this being one of them. It does sound difficult though, especially when it comes down to providing facts that could damage the reputation of fellow engineers. However, the safety of those using the facilities that we engineer is the utmost important issue and needs to be keep in the foresight. Thanks again to Mr. Drerup for such a great introduction.

  10. Scott M
    December 5, 2012 at 7:58 pm #

    Thank you Mr. Drerup for an excellent talk on the role of an engineer as an expert witness. Throughout my years here several teachers have hinted about liability, trials, and whatnot, but never have I had as in-depth a look into this side of engineering. Being involved in a law-suit is unfortunately something that many of us will probably have to deal with in our careers.

    The story you told about being grilled on the witness stand over the course of 2 days really resonated with me. Back in high school I participated in mock trial and for each trial there was an expert witness (though usually a doctor or crash investigator instead of an engineer) and I would usually play that role. As the expert witness I had to be cross-examined by the opposing attorneys and even in a fake case it is pretty intimidating. Opposing attorneys definitely want to attack your credibility and make you look foolish.

    I am still somewhat confused about arbitration and mediation though. How exactly is an arbiter or mediator picked. Is it another industry professional who has no stake in the case or someone totally unrelated to the building industry? Are these two options what occurs when a side decides to settle a case, or are they used when it appears both sides have some fault in a case?

  11. T.J.K
    December 5, 2012 at 5:08 pm #

    Thank you Mr. Derup for coming to Penn State and give your presentation, I’ll start off that I did enjoy what you deemed the “boring” case studies. It’s out of the box from what we have seen before and very interesting. I’ll start off with the wood tiling case study, I know you stated about the showers who was at fault but for the wood tiling who was determined to be at fault? It certainty could not have been the contractor because he was given the instructions to install the flooring, he isn’t in control of the humidity of the building. Does this go back on the architect then? Or whomever chose the type of wood flooring to be used? Also I apologize if you answered this already but what was done after this study? Was the same flooring used just the building was kept at a certain humidity level? Or was there a recall and a completely separate floor system was installed?

    Next about the wood trusses, that is a very unique situation, the fire-proofing actually making the wood brittle. What was the chemical used in the wood? It’s weird because in the truss members it made the wood brittle but at the connections the wood looked like it was decomposing, as if there was a chemical reaction with the metal plate and the chemical.

  12. Logan G
    December 5, 2012 at 11:38 am #

    To fathom that I may someday be called upon as an expert witness is shocking. While you hinted that most cases that you have worked on did not go to trial, I was wondering if you could provide us with an estimate as to the percentage that go to trial and the percentage that are settled outside of court? Do you often feel that negotiation is going to happen after examining what has happened (i.e. once you do your initial survey can you tell who is at fault and who should be hoping for negotiation?).

    I can only imagine the stress involved with sitting on stand and being grilled by an attorney. What is the longest amount of time that you have had to appear in court or in negotiation meetings (days or hours)?

    You also mentioned that you recently started working on building design after a number of years of doing primarily assessments. Was this a tough transition to make? Are you looking forward to it?

    I would also like to say thank you to Mr. Drerup for taking the time to give a very insightful presentation. I am sure that this will become relevant to all of us in some way, shape, or form during our careers.

  13. James C
    December 5, 2012 at 12:55 am #

    Thank you Mr. Drerup for your informative presentation on the role of the expert witness.
    My first exposure to what an expert witness does was in sophomore year when my statics and thermodynamics instructor was working through a case related to one of his inventions while he was in industry. He wasn’t able to say much at all, but what he did say intrigued my interests. It seemed like a great deal, take on a handful of cases each year and golf the rest of the year. Knowing more now, I’m sure that it is not quite as simple as that. Mike’s lecture exposed some of the more nitty-gritty nature of such a service.
    Engineering ethics were mentioned as the key to the professional practice side of being an expert witness. Unfortunately, it seems that universities don’t require engineering students to complete a purely ethics course. Do you think that this is because ethics can only truly be learned out “in the field”? If this is the case, do you feel that ethics are acquired more while working as an engineer or as an engineering manager? Even with all of the experience in the world, I would imagine it is still tough to know what is the right decision regarding a case, if there is even a right decision.

    • Victoria I
      December 6, 2012 at 1:57 pm #

      Going off of what James said about ethics classes, it is probably difficult for the universities to come up with a class just for that topic. The topic itself is on the F.E. exam, as most of us already know since we have taken the exam. A lot of the questions are obvious, but others seem like they could go either way. I feel that ethics, as an engineering topic, has a lot of gray areas that without proper instruction someone might make the “wrong” call without realizing it.
      At the same time, our legal system in general doesn’t really seem to be based on ethics at all, but rather who can argue their points better to convince the jury or judge. This is what concerns me most with respect to an expert witness engineer. Mr. Drerup and Professor Parfitt obviously have experience in doing this,so they are both careful with their wording both in the technical reports and when on the stand. For a less experienced person acting as an expert witness, lawyers really try to dig in to every single word and may point out something that the engineer didn’t intend to say. This limits the engineer’s credibility just because of a small wording error.
      The technical writing class we are required to take doesn’t cover any legal documents. If universities do come up with (or already have) an ethics class, maybe they should also include the unsaid rules of legal documents.

    • Mike S
      December 9, 2012 at 9:29 pm #

      I think the idea of an ethics course is a great idea not only because it’s a topic on the FE exam, but because it’s an extremely important part of the industry. And in response to James’ question about ethics being learned in the field, I feel that ethics can still effectively be taught in a classroom environment. While I agree that most ethics are acquired from personal experience, I do think that the examples and knowledge provided by an experienced professional can go a long way in the classroom.

      I think it’s great that Penn State is offering AE 598D (Legal Aspects of Engineering and Construction) next semester. A course like AE 598D can go a long way in providing “experience” to a student before they even begin their career.

      • Emily W
        December 10, 2012 at 5:45 pm #

        James and Mike both bring up interesting points about ethics and where people best learn to make ethical and moral decisions. I don’t think ethics can be taught in the classroom or in a multiple choice exam such as the FE. For example, a student taking the FE can read a question, compare the answers, and choose the best answer or what they think should be done in an ideal world. However if this person was put in a real life situation where an important decision needed to be made with pressure from a boss or client in a certain direction, the outcome may be different. With that being said I agree with Mike that people learn how to make ethical decisions from personal experiences. However I think a class on the legal aspects of engineering and construction would still be beneficial to help students learn how these two industries interact.

        • Victoria I
          December 10, 2012 at 9:32 pm #

          I agree with Emily that the multiple choice questions on the FE are not the best way to learn ethics. Some of the questions had more obvious “right” answers, where in real situations many people may be tempted to choose one of the gray areas. However, some of the other questions or ethical items really seemed like they didn’t necessarily have a single right path. Some of the ethics in the field must have some sort of professional engineering judgement, as we talk about in all of our design classes.

    • Issa J.
      December 10, 2012 at 11:39 am #

      James mentioned a good point, sometimes there is not any specific right judgement or true answer. But, in this cases engineers just talk about their findings and don’t participate in decision making. So, I think the only work that an engineer witness must do to be ethical is that say the truth.

  14. Devon S
    December 4, 2012 at 11:57 pm #

    I’m certainly appreciative of the time Mike took today to present to the class. It was a great presentation that would do wonders for any student who wants to know more of how the legal world in the engineering industry works. When the topic of a case being resolved in a settlement instead of going to a trial came up, I couldn’t help but think of what that fully entails.
    Does the party at fault have to reveal their mishaps or state why they want to settle? Can the party receiving compensation disclose this information to the public or is that usually apart of the agreement?

    Going along the lines of what Mike stated earlier regarding that an individual will never know everything; it seems that there is alot that one needs to continue to learn about regarding not only engineering, but the ethics and legal processes that go with it.

    • Logan G
      December 10, 2012 at 10:34 am #

      I want to expand on the question that Devon began in the beginning of his post. When negotiation ensues, is everything said during the negotiation process public information or is it kept private? I would assume that most of the time when negotiation occurs it is not because one party is more to blame than another — I would assume that the case is settled/negotiated to save each party a substantial amount of time and money. Hopefully Mr. Drerup or Prof. Parfitt can expand on this, since they have industry experience.

  15. Mike Drerup
    December 4, 2012 at 8:46 pm #

    Hi Folks,

    Thanks for coming to my presentation today. I’ll start by addressing the fist couple of comments:

    Mingao, your question about liability and payment is very important! I like to use the poker analogy because few poker hands are perfect, and in much the same way few cases are perfectly clear. There are almost always significant strengths and weaknesses on both sides of a dispute. Te question of whether to “play a bad hand”, to pursue a case with weak technical arguments, does not rest with the expert, but with the client. As experts, we’re responsible for evaluating the technical details of a case and reporting our findings and engineering opinions to our client. The attorney is responsible for evaluating and advising regarding legal options (e.g. go to trial or settle). Ultimately, though the client, typically the defendant or a plaintiff in a legal case, must decide whether to follow that advice.

    When an expert is retained, there must be a mutual understanding that their is NO guarantee or expectation that the expert’s work will lead to a specific opinion or legal outcome. This is why engineers and other experts should typically bill on an hourly basis for their time, a simple and transparent approach that helps avoid the perception (or reality) of being a “hired gun”. We must present our findings and opinions without bias.

    Taking your hypothetical case – a client that is 100% at fault – this would typically become clear early on, after a fairly small amount of work, and the client would be free to release the expert and pay the bill for work performed. In such a case the client and and their attorney would have to decide whether to pursue the case or seek settlement. I would argue that the initial assessment would still be of value to the client’s decision process, even if theyt chose not to retain the expert for continuing work, such as preparing a report.

    A final point, we can’t “twist” our findings; they must be based on an honest assessment of fact.

    Regarding the Issa’s question, I think it would be great if impartial experts could help the trier of fact sort through often complex technical issues. The nature of our justice system generally precludes this, but there are exceptions. Several years ago I served as a court appointed expert on a case, with my bill split equally by the two opposing sides, regardless of my opinions or the outcome.

    Thanks again for your questions and comments,

    Mike

  16. MinGao L
    December 4, 2012 at 12:29 pm #

    Thank you mister Drerup for an awesome presentation. I felt that I have learned so much today, a lesson that is very important in the future. I like how mister Drerup used the analogy of a poker game as the way we deal with problems. It is the nature of human to have the desire to win it all in a game of poker, instead of playing to win because something personal or stereotype against the other player. This analogy gave me another perspective to look at things in a whole new way. Also, the case study that you presented today are not boring as you mentioned, but fascinating. The wood flooring and shower cases were problems that I didn’t know before and wouldn’t have the chance to learn about elsewhere. The process to determine that moisture was the cause of the problem in wood floor is what makes these kinds of cases interesting.

    One question that I would like to ask. What happen when you find out that your client is 100% at fault for the problem that he hires you to investigate? Furthermore, you find out that you cannot twist the case around to make your client take less reliability. In that situation, would you still take your client’s money and make him take 100% responsibility? What would you do?

  17. Issa J.
    December 4, 2012 at 11:40 am #

    Thank you Mike for you great presentation. Today, you talk about an aspect of our career which I didn’t know much about that. It’s very complicated situation when an engineer wants to attend at court as a witness, because it’s tied with ethical issues.
    I’ve a question about the judgment procedure. In the court, Is there any place for engineers to argue? I mean an appointment that engineer witness of both attorneys and the jury attend and discuss about the topic technically. I think in this way the result of judgment will be more close to justice.

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