Advocates for Reality
BY DANIELLE BOYKIN
After being convicted and sentenced to death in 1999 for a triple murder and armed robbery in Broward County, Florida, Seth Penalver never stopped proclaiming his innocence. Forensic engineering would play a role in his future exoneration. In the case, the prosecution used marks left by a vehicle to place Penalver at an incriminating location. However, a forensic analysis by Martin Gordon, P.E., showed that the marks didn’t correlate with ones that would have been left by Penalver’s vehicle.
In 2006, the Florida Supreme Court overturned Penalver’s conviction because it determined that there were prosecutorial errors and the introduction of improper evidence. And in 2012 a jury would find him not guilty of the murder charges in a retrial. Gordon describes his involvement in this case as one of his most rewarding career experiences.
Gordon is a member of a unique segment of the professional engineering community—PEs who are committed to serving the public by advancing the ethical and professional practice of forensic engineering. For 35 years, the National Academy of Forensic Engineers has been advancing the knowledge and skills of licensed engineers who serve as consultants to the legal profession and as expert witnesses in courts of law, arbitration proceedings, and administrative adjudication proceedings.
Forensic engineering is defined by NAFE as the application of the art and science of engineering in matters related to the jurisprudence system, including alternative dispute resolution. Forensic engineering isn’t limited to any one engineering discipline. Many types of legal cases, both civil and criminal, benefit from the knowledge and skill of a forensic engineer. Slips-trips-and-fall cases, accident reconstruction, structure and systems failures, fire and explosion investigations, and product failures are some of the types of cases that forensic engineers take on.
Established in 1982 as an NSPE chartered affinity group, NAFE, often referred to as “The Academy,” requires that members hold a PE license, have extensive forensic engineering experience, hold membership in NSPE and a technical society, have courtroom expert testimony experience, and have recommendations from attorneys and forensic engineers.
NAFE seeks to lead in the ethical practice of forensic engineering. Members are guided by the NSPE Code of Ethics and must provide objective, nonbiased reporting and testimony within the legal system. The average member has a career that spans 30 years beyond receiving the PE license and is licensed in multiple states. Currently, there are 450 full members, associate members, and affiliated members.
NAFE’s first president was Marvin Specter, P.E., F.NSPE, a past NSPE president, who is also a founder and previously served as executive director. NSPE Deputy Executive Director and Legal Counsel Arthur Schwartz is NAFE’s current executive director. The Academy is also a founding member of the Council of Engineering and Scientific Specialty Boards (CESB).
Forensic engineers don’t have to be legal experts, but it does help to understand the legal system and how it relates to their practice areas. Legal procedures can vary from jurisdiction to jurisdiction. “In New York State, they like to say it’s trial by ambush, because the experts aren’t deposed prior to trial,” says Gordon, who will serve as NAFE’s 2018 president. “While in other states, like West Virginia, the attorney will depose the experts so they know what they are going to say at trial.”
Some NAFE members may acknowledge that they didn’t enter the engineering field with thoughts of ever becoming a forensic engineer. The skills needed to do so are much different than those required of an engineer working in a more traditional setting. Not only do you need to be comfortable speaking in front of an audience, but sometimes it’s a “hostile audience,” says Gordon. “You need a pretty thick skin, because attorneys on the opposing side are going to try to do everything they can to undermine you. You have to have confidence to defend your expertise and opinions.”
An Unexpected Career Path
Forensic engineering has led to an ideal career path for NAFE 2017 President Michael Leshner, P.E. This area of engineering is perfect, he says, for professional engineers who have accumulated 10 to 20 years of expertise and want to use their technical knowledge instead of serving primarily in administrative roles.
How do most professional engineers get on the forensic engineering career path? Often, it starts with a call from an attorney looking for a technical expert, says Leshner. After that first experience, they continue with the work, he adds, “because they learned something new and got some satisfaction from being involved in the cases. And it pays pretty well.”
Leshner’s career took a turn into forensic engineering when he was 34 years old. His employer was going out of business and wanted him to work without a salary until business turned around. Needing to make a living, he contacted an agency that connects technical experts with attorneys. That started a 15-year part-time forensic engineering practice.
Prior to Leshner’s move to full-time practice, he was a director of engineering who supervised 50 people. He had an office with six windows and a bonus at the end of the year. Yet, he wasn’t doing the engineering that he loved. “Being a forensic engineer feels like getting a new job every week. It stays fresh and you continue to learn,” he says. “For an engineer who is nearing retirement age, this is the perfect business.”
When Leshner considered making his practice full time, he knew he needed credentials beyond his PE license to make the move. “I discovered the National Academy of Forensic Engineers and it seemed to be a good match for me,” he recalls.
Gordon worked in industry for 12 years prior to becoming a professor in the Rochester Institute of Technology’s Department of Mechanical and Manufacturing Engineering Technology in 1995. He took his first assignment as an expert witness in 2001. His first cases involved what he described as “hideous industrial accidents.” Now he is primarily focused on traffic-accident reconstruction work and some criminal case work. “Forensic engineering has allowed me to practice what I teach and teach what I practice—the best combination in the world,” he says.
Sometimes the cases that forensic engineers are involved in are simply to help a family better understand the circumstances of a loved one’s death, says Gordon, and to gain some closure with a civil lawsuit when there’s no criminal trial remedy. In one of his cases, a prominent doctor in the Buffalo area was alleged to have been driving while under the influence and was charged with killing a 17-year-old girl skate-boarding home from her job. A jury found him not guilty. “It’s very rare for the police to get the help from an engineer for a vehicular manslaughter case,” he says. “I got involved in the civil suit case, and there was a ruling in the family’s favor.”
Following the September 11 terrorist attacks, Professional Engineer John Leffler’s product development firm suffered when his customers slowed or stopped their spending due to economic uncertainty. Through the relationships that he developed with forensic engineers, he was convinced that his expertise could translate into the forensic engineering field.
Leffler attributes his relatively seamless transition into the field to his exposure to a variety of design experiences combined with his strong communication skills. “You have to be able to explain technical information to nontechnical people and do it in a way that gels with their life experiences and in terms that they can understand,” advises the 2016 president of NAFE and employee of FORCON International, a forensic engineering and surety consulting firm.
Over the years, Leffler has learned some valuable lessons that he doesn’t hesitate to share with PEs just starting forensic engineering careers. First and foremost, make sure that you have access to all relevant case documents as soon as possible, because that’s how you develop the most technically defensible opinions. Also, you never know what questions an opposing attorney may throw your way in a deposition or trial. “You can’t make up stuff on the fly,” he says. “If you don’t have all the case information, then you’ll look like a [fool] when you’re offering opinions that are counteracted by some document that everyone else has seen.”
Confidence is essential when providing expert testimony. “You have to be able to explain things in a clear way and in a way that the other side can’t twist,” says Leffler. “Attorneys are advocates for their clients and will do everything they can to raise doubts about what you have said. It’s almost like sparring.”
Gordon agrees that providing expert witness testimony can be bruising. An opposing attorney is just waiting for the opportunity to rip apart your testimony during cross-examination, he says. Gordon’s toughest time on the stand came in a case involving a large auto manufacturer. An attorney representing the other side was not only a Harvard Law School graduate, but he also had an MIT engineering degree. “He was both technically and legally sound. That was the toughest day that I ever spent on the stand,” he recalls with a laugh.
As a professional engineer, you must be willing to speak truth to your client. In every case, says Leshner, an investigation will present things that are going to be both helpful and unhelpful to a client. “You have to be honest with your client and then let him or her decide how they are going to handle it,” he says. “I have had to tell a client, ‘Your theory is provably false. Don’t waste your time and money with this case.’”
Attorneys may be advocates for their clients, but forensic engineers must be advocates for reality, says Leffler. He recalls plenty of cases where he’s had to tell clients information they didn’t want to hear. “I’ve had some clients respond with, ‘Thanks, but I’m going to find someone else.’”
A Sense of Community
The only way to truly learn about the unique field of forensic engineering, says Leshner, is to just jump in and swim. But a great benefit of joining NAFE, particularly for sole practitioners, he says, is the strong sense of community. Leshner recalls that he was “practicing in the dark” before joining the academy. “I learned that everyone has similar issues they face, whether they are a civil engineer, mechanical engineer, or electrical engineer,” he says. “We discuss issues that we all commonly face, such as difficulties with attorneys, thorny ethical issues, and practical things like the type of insurance we need to practice.”
Every year, NAFE hosts winter and summer meetings where members can earn up to 28 professional development hours annually. Members can also submit technical papers for the peer-reviewed Journal of the National Academy of Forensic Engineers.
Gordon believes that there are quite a few PEs performing forensic engineering work who could benefit from membership in NAFE. Members share valuable information with each other during the meetings, and also reach out to each other for help and advice through a listserve. Associate members and non-member affiliates can also participate in a mentorship program to help guide them on their career path and to future full membership status. “We have an experienced membership base that is dedicated to the ethical practice of engineering,” Gordon says. “We can be very valuable representatives and communicators for the general engineering community.”