I’ve been in a deposition since 10 AM; it’s 3:31 as I write this. I stated, as part of my ethics report, that a public accusation of racism in the current political and social environment, particularly in the District Of Columbia, created a serious threat to the business and business owner so accused.
I was asked what authority as an ethicist I had to state such an opinion.
I replied that it wasn’t an opinion, it is a fact, and that my role as an ethics expert did not limit me from using knowledge that every sentient person in U.S. society would have in the course of formulating my ethical analysis.
Ethics Alarms 
“Uh. No further questions.”
Drop the mic.
I was asked what authority as an ethicist I had to state such an opinion.
“As an ethicist?” I didn’t know you had to be an ethicist to testify to the obvious. Usually, it isn’t necessary to be credentialed to state an uncontroversial fact. Certainly as a businessman you are also qualifed to offer that observation, since the question was in the context of business.
This was clearly an attempt to discredit your opinion, but my goodness, what a risible effort it was!
The whole interrogation was like that. I think I did rather well, if I do say so myself…
Based on what you wrote, I’m inclined to agree.
I am inclined to disagree.
(Inside Baseball Warning!)
There are two primary types of witnesses in legal matter: Fact Witnesses and Expert Witnesses (you could delineate them as fact witnesses and opinion witnesses, because there are people who can give opinion testimony without being experts). For example, a fact witness can say that I saw Derek Chauvin kneel on George Floyd’s neck, while an expert witness could opine that the cause of death was compression of the neck (or drug overdose), without having witnessed any of those activities.
Actually, Fact Witnesses and Opinion Witnesses is a better division (except that certain people can testify as to facts but also have the knowledge to give opinions about certain things. For example, an expert witness could say: “I have observed several verified exemplars of this person’s signature and, based upon those, it is my opinion that this signature on this will is the signature of person X.” However, a fact witness could say, I have seen my dad sign hundreds of documents and based upon that experience, and no training as a handwriting expert, that the signature on the will is my dad’s. Certain fact witnesses can give opinion testimony.
Getting on to Jack’s scenario, if he is being called as an expert, he can opine about things without having had to witness those things. But, it would be objectionable as speculation for him to state as fact something that was not factual in nature, especially if testifying as an ethicist.
If I were to predict, if called to trial, this testimony of Jack’s would be inadmissible.
(Disclaimer: I know nothing about this case, the facts or allegations in the case, and Jack’s involvement in the case is murky (he seems like a straight-up expert witness, but this may be a case with public notoriety where he may have direct factual knowledge of the case)).
-Jut
I’m inclined to agree with you, based on how I described the exchange. The question was in part whether a public statement in the media relating to the case was prejudicial or likely to be, which would make it a violation of the rule against statements about a case in the media, conduct “prejudicial to the administration of justice,” and a statement designed to “burden” a third party, also a rule violation. The statement was an assertion that the party had engaged in racist behavior. The facts that I testified to were the violations of these rules, in my opinion, in part because an accusation of racism in the DC Community (which is overwhelmingly black), at this time when the label of racism is demonstrably ruinous (citing, for example, the Oberlin case). I said my statement regarding the effect of racism accusations in this community was a statement of observable fact that I would expect a court to take judicial notice of. Language in the ABA’s version of the rule in question states specifically that some topics are more prejudicial than others and that societal attitudes play a large part in that. If there is literally no one who doesn’t know, by observation, that racism is, in this society, taboo, I said, I can regard that as fact as a member of society and an observant human being. It is not a conclusion or an opinion that relies on my official expertise, though my training in ethics tells me that racism is unethical and harmful.
Much of the questioning was along those lines. As an ethicist, I have to determine whether conduct is 1) compliant with the rules and/or 2) unethical, unprofessional, and wrong. To do that, my judgment depends on my assessment of conduct based on ethical principles. My analysis must include basic knowledge of human nature and the natural consequences of actions based on human experience and my own study and experience.
What I could have and probably should have added is that racism is by definition a bias, and a bias make an individual less trustworthy. The bias of racism makes an individual presumably unfair, disrespectful, uncaring and irresponsible as will…and those are ethical measures.
That makes a lot more sense.
-Jut
Yeah. Thanks for making me clarify. I was punchy when I wrote that, and the depo went another two hours. The lawyer was screaming at me the whole time. My lawyer-client said, “That means we were winning!”