I was troubled on two fronts recently. One when a firm from away asked if I would investigate the cause of an accident on contingency. The second when I thought to give others a heads up that a firm was looking.
The second came to mind when I declined the commission and I didn’t hear back from the firm. It occurred to me the firm would call the few others on the East Coast who could do this forensic work. I knew the others – should I let them know? I didn’t and that bothered me for a while.
I resolved the two-front, ethical dilemma implicit in this situation after reflecting for a while.
My problem with being asked in the first place was that it was at odds with common law requiring that a forensic expert: (Refs 1, 2)
- Be independent from the parties that retain them
- Provide objective, unbiased opinion evidence in relation only to matters within their expertise, and,
- Avoid assuming the role of advocate for the parties that retain them
These requirements are the same in all issues involving dispute resolution and claim settlement. They mean than an expert must engage on a fee basis not on contingency, and accounts kept up to date. Otherwise, s/he would be seen as biased and have a vested interest in the outcome of the dispute. Perception is everything.
The great majority of experts know that they serve the process, as found in a pilot study of 152 Canadian experts, not the party who retains them. (Ref. 3)
But, to be sure that there wasn’t another school of thought out there on experts and contingency I contacted the head of another law firm from away. I haven’t been answered as quickly before as in this case – slammed would be more correct: “Absolutely not!”.
But why would a large, experienced law firm ask an expert if they would take an assignment on contingency? They would know the common law, and also that an expert perceived to be biased would be of no value to the judicial process.
Of course, for the law firm, as advocates for injured parties who do not have enough money to seek justice, it’s seen as an acceptable process for both the firm and the injured party.
I figured the problem developed for the firm because the person who contacted me was a junior lawyer or a paralegal who just didn’t know. Their law firm took cases on contingency, why not an expert?
The junior person gave himself away relative to his experience when he asked me to take the case on contingency. Then saying the case was expected to settle in about a year – it would be a first compared to a more normal several years.
Realizing this, I was satisfied that I was contacted by an ethical firm but represented on this occasion by an inexperienced person.
I did not contact the other experts to give them a heads up about a shopper in town. Was I unethical in some way?
I was uneasy for a while. Then I realized that experienced engineers on the East Coast know that as experts they serve the judicial process. (Ref 3) There was no need to alert them. We know there are one or two down here who would be receptive to being retained on contingency but alerting them to the shopper would not change their inclination.
I felt okay after thinking things through on this front too.
I’m thinking that contingency – getting paid when the money comes in – is okay for some parties to a dispute. It’s the perception, if nothing else, even though it’s more, that’s bad for experts. Add to that the risk of unintentional bias. At the end of the day, all things considered, some parties to a dispute or claim resolution give contingency a wide berth – ethical experts for example.
- Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004 Thompson Carswell
- Principles governing the cost control of dispute resolution and claim settlement involving experts. Posted September 24, 2020. Updated September 24, 2020, March 18, 2021 and December 30, 2021
- Corbin, Ruth M., Chair, Corbin Partners Inc. and Adjunct Professor, Osgoode Hall School, Toronto, Breaking the Expert Evidence Logjam: Experts Weigh In, presented at Expert Witness Forum East, Toronto, February, 2018
(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada December 30, 2021. email@example.com)