Is It Ethical To Use A Public Adjuster As An Expert Witness In Litigation?
The way that ethics are determined and laws are largely defined is by opinions and decisions passed down by the courts. In an interesting article by Todd M. Tippett citing Texas State Law , Tippet remarks,
“So, may a Texas attorney ethically present a public adjuster as a witness when the public adjuster is entitled to a contingent fee? While Texas courts have not opined on the issue, other jurisdictions have found that contingency fee arrangements for fact and expert witnesses are against public policy.”
The basis behind this opinion comes from the idea that since the public adjuster has a vested interest in the success of a homeowners claim that it would be considered unethical for the same public adjuster to serve as an expert witness in a case where the outcomes directly benefit the public adjuster.
Still, when you consider the fact that the public adjuster has valuable insights that can influence the discovery in a case, doesn’t it seem rational then to hear the testimony regarding the real damages associated to the homeowners claim from someone with intimate knowledge of the real damages?
According to The Texas Center for Legal Ethics it has been in a particular case regarding property tax values, that a lawyer’s use of a consulting company’s services as an expert witness was unethical due to the contingent fee agreement, stating:
“It is a violation of the Texas Disciplinary Rules of Professional Conduct [Rule 3.04] for a lawyer to use in a case as an expert witness an employee of a business entity that has a contingent fee interest in the outcome of the case.”
What then are the options for the litigating attorney in such cases? Perhaps, utilizing the services of another Public Adjuster unrelated to the case?
This may prove to be a somewhat controversial matter in Texas State Law over the years to come, and whether a Public Adjuster testifies in a case or not may be irrelevant since the attorney may still be armed with information from the Public Adjuster without having to actually call them to the stand in such cases. It is amazing what a photograph can do. They say, “A picture says a thousand words.” Still, having an expert witness or someone with intimate knowledge of a particular claim better serves the attorney and the client in any court case.
 Taylor v. Cottrel Inc., 795 F.3d 813, 816 (8th Cir. 2015); Stranger v. Raymond, No. 08-2170, (C.D. Cal. May 9, 2011); J&J Snack Foods Corp. v. Earthgrains Co., 220 F.Supp.2d 358 , 367 n.8 (D.N.J. 2002); Accrued Financial Services Inc. v. Prime Retail Inc., 298 F.3d 291, 300 (4th Cir. 2002); Buckley Powder Co. v. State, 20 P.3d 547, 559 (Colo. App. 2002); Farmer v. Ramsey, 159 F.Supp.2d 873, 883 (D.Md. 2001); Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 73 (2d Cir. 1990).
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