In the field of NDT, industries are generally focused on technology and the proper application of NDT to ensure integrity of assests and protect the public health by minimizing or eliminating unwanted failures. As practioners, we train, consult, and apply our skills to find defective components or parts before they find us. However, there are many other interactions in the field of NDT, including but not limited to assisting with failure analysis and in diagnosing systems and processes where NDT can be improved. Depending on your specific industry and your position, you may one day find yourself in a court of law serving as an expert witness.
What Is an Expert Witness?
An expert witness has the knowledge or experience involving a specific subject. An expert witness usually has a degree, certification(s), or public and peer acceptance as an expert in a specific topic or area. Specifically, as it relates to litigation, an expert witness can be defined as: “An expert witness is a person with specialized skill sets whose opinion may help a jury make sense of the factual evidence of a case.” (Talve 2021).
Why Are Expert Witnesses Needed?
Why do we need expert witnesses? Often civil disputes or criminal charges arise in an industry, and someone must provide expert testimony or evaluations relevant to a case and/or circumstances surrounding an event. Attorneys often hire an expert witness to substantiate facts and/or help layman (juries/mediators) to understand the relevance of such facts.
If you are considering becoming an expert witness, you should be familiar with legal proceedings in a specific jurisdiction. Consulting with an attorney prior to the testimony is critical to understanding how you will be questioned and cross-examined. One side of the legal interaction will not be friendly and may attempt to discredit you and your information. It is important to understand how you should present your testimony—factual, on point, and with direct answers, only expounding upon when needed to provide clarity or support your statements.
Serving as an Expert Witness
When serving as an expert witness, you must ensure your statements and testimony are factual and supported by relevant industry practices, procedures, and documents, including jurisdictional code or regulations. An expert witness should exercise caution when providing personal opinions or subjective statements and stick to the supported facts. It is often wise to state the source of your information and ensure you have had appropriate time to review the codes, standards, and specifications related to your statements. Your responses should be limited to subjects you are an expert in. Opposing legal counsel will often attempt to cause you to speculate or contradict yourself. It’s best to simply state the facts, be consistent, and if you misstate a fact, correct it quickly.
Another factor when considering serving as an expert witness in a legal case is time. Many cases can last years, requiring travel and an extensive time commitment. If you choose to serve as an expert witness, be aware of personal and professional obligations. Additionally, you may want to consider having appropriate insurance to cover your involvement, such as “errors and omissions insurance.” If you are working for an employer, you should always discuss your involvement in a legal proceeding prior to committing to ensure there are no conflicts of interest and that you are free to take on outside tasks such as this, which many times will include getting their approval. If you are compelled to testify (via subpoena) you should also inform your employer immediately.
The following is a fictionalized example of an exchange as an expert witness in a legal deposition:
- Attorney: “Why did the inspector choose to inspect in accordance with API 653 when the regulator allowed three possible acceptance criteria?”
- Expert Witness: “While the regulatory agency allowed the application of three possible standards, the inspector was only certified in API 653; therefore, this was the acceptance criteria applied by the certified inspector.”
Here is another example exchange:
- Attorney: “What tools would have been in the inspector’s kit on the day of testing?”
- Expert Witness: “The applicable standard would have dictated the required testing equipment.”
- Attorney: “What dictates the applicable standard?”
- Expert Witness: “In this instance, the regulatory agency or the owner/user would have dictated the applicable code or standard, which was reflected in the purchase order.”
The examples above confirm the expert witness is consistent and concise in their responses. Often the attorney will continue to revisit a question and ask it several times to see if you are consistent in your responses. After a few times, your legal council should state, “Asked and answered,” which is to say, “You have already been asked the question multiple times, and it is time to move on.”
Performing as an expert witness is important in the legal arena and often allows legal disputes to be resolved for the best of all. If you’re seeking to become an expert witness in the field of NDT, or find yourself involuntarily acting as such, you should ensure you are an expert on the topic. Know your relevant documents in the case, including codes, standards, and specifications, and ensure you are working with applicable legal counsel. Closely follow the directions of your legal counsel and stay on subject.
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Martin Anderson, Precision NDT, martin.anderson@PNDTLLC.com
Reference
Michael Talve, “What is an Expert Witness?” Expert Institute, August 27, 2021, accessed September 22, 2021, https://www.expertinstitute.com/resources/insights/what-is-an-expert-witness/
Photo by Proxima Studio