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The Jewish Ethicist: Witness for Hire, Part 2

May 8, 2009 | by Rabbi Dr. Asher Meir, Business Ethics Center of Jerusalem

Expert witnesses may not slant their testimony with an eye to future business.

Q.I'm a property assessor. Being an expert witness is a good source of income, but if I give fair evaluations no one will hire me. Can I tend to low-ball or high-ball estimates in my testimony?

A. In last week's column, we discussed the systemic aspects of your question. We found that a mishna gave us some insights into how our legal system could mitigate somewhat the incentive for expert witnesses to slant their judgment in order to get repeat business.

This week we will take the existing system for granted and examine your situation. Continuing in the same section of the Talmud, the following mishna reads:

One who receives a wage to judge, his ruling is null; to testify, his testimony is null. (1)

The analogy to a judge already indicates the reason for this nullification: the requirement that the witness be totally impartial. If he receives payment from one side, then he is almost certain to show partiality towards that side.

However, Jewish law does acknowledge that sometimes a witness deserves payment. Rabbi Shmuel ben Avraham Adret (Rashba), one of the greatest and most authoritative medieval rabbis, wrote:

Regarding what is written that one who takes money for testifying that his testimony is nullified, it seems to me that this was said only for witnesses who had already witnessed the event. Since they have a commandment to testify and didn't want to do so unless they are paid, it is like a court taking payment to judge, for the court is commanded to sit in judgment. But someone who is not obligated to testify and is paid to go and be a witness is not included in this rule in my opinion. (2)

An expert witness is not like someone who witnessed a traffic accident and is summoned by the court to report what he saw. You can't just march into court and tell what a property is worth. Until you spend many hours poring over detailed information about the property, the neighborhood, the title etc. it is impossible for you to make a judgment on the value of a lot.

So on the one hand, we see that it is legitimate and fair for you to receive payment for your efforts. On the other hand, we see that a witness is likened to a judge in terms of the demand for impartiality.

Let's examine this likeness. It often happens that there is a certain amount of discretion in choosing a venue for a court case. When that happens, the party with discretion will try to find a venue where the judge is amenable to his goal. For example, the prosecution in a criminal case may endeavor to try someone in a jurisdiction where there is a "hanging judge", whereas a defendant will try to steer the case to a place with a judge known for leniency. But we would certainly condemn any judge who purposely slanted rulings in order to attract more cases to his or her court!

By the same token, there is no way to completely avoid the problem that litigants will shop for witnesses who adopt positions favorable to their case. But you as a witness are not allowed to slant your judgment in any way in order to please your client or in order to attract future business. You must give your best professional judgment and hope for the best.

SOURCES: (1) Babylonian Talmud Bechorot 28b (2) Responsa Rashba III:11, cited in Beit Yosef Choshen Mishpat 28.

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The Jewish Ethicist presents some general principles of Jewish law. For specific questions and direct application, please consult a qualified rabbi.

"Jewish Ethicist" book: Includes expanded columns, additional chapters, and a detailed index. readers and subscribers can obtain the book directly from Ktav publishers at a 10% discount. Click here to order.

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