In the context of legal disputes, particularly in complex fields like construction or engineering, "clean" and "dirty" experts (1) are terms used to distinguish the roles of expert witnesses.
The roles are complementary but the distinction between the two is important. Here is a summary of the main points of difference.
Clean Expert
Impartiality: A clean expert is an independent and impartial expert witness. Their primary duty is to provide objective, unbiased opinions to the court or tribunal based on their expertise.
Focus: They focus on analysing the technical aspects of the case and presenting their findings in a clear and understandable manner.
Testimony: Clean experts often testify in court or arbitration hearings, where they may be cross-examined by opposing counsel.
Ethical Obligations: They adhere to strict ethical guidelines to ensure their impartiality and credibility.
Dirty Expert
Advocacy: A dirty expert is retained by one party in the dispute to provide support and advocacy. Their role is to help build and strengthen their client's case.
Collaboration: They work closely with the legal team, assisting in the analysis of evidence, identifying potential weaknesses in the opposing side's arguments, and developing case strategy.
Non-Impartiality: Unlike clean experts, dirty experts are not required to be impartial. Their duty is to act in the best interests of their client.
Behind-the-scenes: Dirty experts typically do not testify in court. Their work is primarily done behind the scenes, supporting the legal team.
Important Considerations
Dual Roles: It's generally not advisable for an expert to switch between being a "clean" and "dirty" expert in the same case, as it can compromise their impartiality.
Ethical Concerns: While dirty experts are not required to be impartial, they still have an ethical obligation to provide honest and credible analysis.
Strategic Value: Both clean and dirty experts play crucial roles in legal disputes. Clean experts provide objective evidence, while dirty experts help build strong cases.
Note(s):
I prefer the terms testifying and non-testifying as they more accurately describe how to differentiate between the two roles. However, I’m also a pragmatist, so I have used the terms clean and dirty for this post.
Disclaimer: This information is for general knowledge purposes only and should not be considered legal advice. It is essential to consult with a qualified legal professional for any legal matters or concerns.
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