There’s an old joke in which people in different professions are asked, “What’s two plus two?” Whichever profession the joke teller dislikes the most is represented by someone who leans in and responds slyly, “How much would you like it to be?” In one version, it’s an economist. In many, it’s a lawyer.
In reality, both attorneys and forensic economists are bound by codes of ethics. Both professions are expected to behave in certain ways. Here are a few of the rules for forensic economists like me.
No Contingency Fee
One of the ethical rules laid out by the National Association of Forensic Economics, of which I’m a member, is that forensic economists must either charge a flat fee or bill by the hour. Our compensation cannot depend on the outcome of the case.
Therefore, I can’t accept a bonus if my client wins or grant a discount if my client loses. I’ll admit that no one has offered me a bonus, but I have been asked a few times to cut my fee after a loss.
When I’m hired, it’s to perform a service, not to guarantee an outcome. I’m not supposed to care who wins the case. I’m supposed to get the numbers right.
Years ago, a client owed me money for the expert report I’d written, and he needed me to testify at trial. But he said he couldn’t pay me until his client won a verdict or reached a settlement. I said I couldn’t testify. My testimony would be tainted because I had a monetary stake in him winning. Testifying would effectively turn me into a contingency-fee expert. As it happened, the client lost his case, and I was never paid what was owed to me. Acting ethically can come with a cost.
Conflicts of Interest
The standard practice for expert witnesses is to check for conflicts before taking on a new case. An expert with a connection to one of the parties might not be able to do an objective analysis.
When it comes to possible conflicts, my duty is to inform the attorney and let him or her make the call. So, when a case came my way years ago involving someone I knew, I told the attorney. I assumed it would be a conflict, but the attorney decided that because I was neither related to nor in business with her client, there was no conflict.
Another time, an attorney contacted me about a case involving a local political controversy that I’d commented on in social media. I felt that my personal opinion was irrelevant and that I could be objective, but I informed the attorney, and he responded by not hiring me. Sometimes it goes the other way. I’ve worked on a few cases involving high-speed police pursuits, for both plaintiffs and defendants, despite having once written a newspaper article criticizing such pursuits on cost-benefit grounds. The attorneys in those cases were apparently untroubled by my article.
Hired Gun
I’ll work on any case so long as my services are appropriate. To people outside the legal profession, my willingness to work for anyone with a checkbook sometimes reads as a lack of ethics. Am I basically a mercenary? I guess so, but I see that as a guarantee of my ethics. It means that I have no agenda. As an “equal-opportunity expert,” I don’t favor plaintiffs, defendants, individuals, corporations, or governments.
The key ethical principle for me as a forensic economist is that I’m not an advocate for my ”side” in a case. I’m an advocate for my numbers. My only agenda is to provide as objective an expert opinion as possible.
