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Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

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Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review June 6, 2006 / 10 Sivan, 5766

Witness character

By Rabbi Dr. Asher Meir


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Does an expert witness have to be impartial?


http://www.JewishWorldReview.com | Q: Much of my income as a real estate appraiser comes from testifying as an expert witness. The litigants who hire me expect me to give low appraisals which will help them in court, and they'll stop hiring me if I don't meet their expectations. Can I tailor my testimony to the needs of my clients?


A: In order to answer your question, we have to clarify a critical distinction. There is a big difference between a litigant or party to a trial and a witness in a trial. Everyone understands that the litigants are not impartial, and that their claims may be carefully crafted to help their case in court. But a witness is expected to provide only facts, and to be completely impartial.


Ideally, even claims of the litigants should only reflect objective fact, or at least reasonable and defensible claims. The Torah warns the judge to "Distance yourself from falsehood" (Exodus 23:7); the Talmud explains that in order to maintain this "distance" the parties to a lawsuit must help the judge by making only factual claims, even if a fraudulent claim is necessary to achieve a just outcome. Even so, absolute objectivity is not expected of a litigant, and this is certainly true in the adversary system we find in the secular court system. There is some legitimacy for each side to make claims which are most likely to result in a favorable trial outcome.


We applied this idea in an earlier column, where we explained that an accountant is permitted to make a novel interpretation of a tax law in order to help his client, as long as he believes the interpretation can be defended. The accountant doesn't have to pretend that he is a judge making an objective determination if his understanding is correct. He is making a claim, and if the tax authorities disagree then they are welcome to make their own counterclaim and let the judge decide. By the same token, if your client wants to claim that his property has a low value, you can help prepare documents which tend to support that, as long as they don't violate basic standards of your profession.


But a much different standard applies to a witness. A witness is never allowed to distort the truth. Even if a witness is called by one side, he is testifying on behalf of the court, not on behalf of a litigant.


Jewish law is particularly strict on this point. The Torah forbids for a person even to pretend he is willing to serve as a witness in order to intimidate the other litigant into settling! This is true even if the decoy witness is convinced that this will lead to justice being done. The basis for this rule is again the verse, "Distance yourself from untruth." (Exodus 23:7.) It's not enough not to distort justice; we have to distance ourselves from injustice by avoiding distorting the judicial process.


That does not mean that the expert witness needs to be totally impartial. It is natural that he has some inclination to the position of the side which engaged him. This "inclination" has an interesting parallel in Jewish law. One very popular kind of Beis Din (rabbinical court) proceeding is "zabla", an acronym for "ze borer lo echad", meaning that each litigant chooses one judge and the two judges together choose a third. The three-judge panel then tries the case. Some commentators explain that each chosen judge will be likely to emphasize the strong points of the case of the litigant who chose him — to bring them to the attention of the other judges. Once all of the facts are brought to light, all judges will of course judge impartially.

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By the same token, it is understandable if an expert witness is particularly careful to emphasize those points which are favorable to the side which hired him, and is more taciturn regarding those which are favorable to the other side. But this is not the same as making statements which go against your professional judgment and training.


The real problem is with the system. An expert witness is an unfortunate hybrid — engaged and paid by one side yet expected to provide impartial testimony! The ideal situation in cases where expertise is required would be for both sides to agree on an expert. It would be wonderful if judges would instruct litigants to try and agree on an expert in such cases — just as judges sometimes instruct the sides to try to reach a settlement or to engage in mediation. Then there would be a strong incentive for the appraiser to be right on target, since the most accurate appraisers would get the most business.


If you have a strong reputation as a skilled and accurate assessor, perhaps you could get business from disputants who will use you as an arbitrator. They will prefer to take their case to you rather than to court, knowing that they will get a fair judgment at a bargain rate since they don't have to pay the lawyers. SOURCES: Babylonian Talmud, Shavuos 31a, Sanhedrin 23a; Maimonides Mishneh Torah Laws of Pleading 16:9; Shulchan Aruch, Choshen Mishpat 13:1, and Shach commentary on 75:1

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JWR contributor Rabbi Dr. Asher Meir, formerly of the Council of Economic Advisers in the Reagan administration, is Research Director of the Business Ethics Center of Jerusalem, Jerusalem College of Technology. To comment or pose a question, please click here.


Previously:

Should I give recognition to a modest man who did a great deed?
In representing my firm, can I tell a white lie?
Defrauding insurance to save a life
Can top level management unilaterally give away money to corporate dollars to charity?
Loans to Family Members
How much worker supervision is too much?
Should I turn in a colleague for inappropriate acts?
Priority in charitable giving
Trolls and ogres
How many hours of work is too many?
Can I promote my product by having it unobtrusively written into a story?
He's not heavy he's my brother
All's fair in war?, II
All's fair in war?
Girth vs. worth
Is it proper to tax bequests?
Ethics of Being Overweight
Penalized for working swiftly
When is it a bluff?
'Rate and switch'
My paycheck is late!
Should schools cater to an elite?
All's fair in love?
Comfort and Competition
Do I need the caller's permission to put a call on the speakerphone?
Overtime for lost time
Is it unethical to play suppliers against each other to get the lowest bid possible?
Do family members have precedence in charity allotments?
What the world of business can teach us about our annual process of repentance and renewal
Are religious leaders subject to criticism?
Vindictive Vendor: How can I punish an abusive competitor?
Blogging Ethics: Is the blogger responsible for defamatory posts?







© 2005, The Jewish Ethicist is produced by the JCT Center for Business Ethics