The headline isn't accurate. The suit was about whether the retired engineer could offer testimony as an expert witness in a lawsuit without a professional engineering license. Notably, the dude had worked as a chemical engineer for decades but never got a PE license because it wasn't required in his industry. So he was a legitimate expert. The North Carolina Board of Examiners for Engineers and Surveyors tried to block him from giving testimony because he had a license. The court ruled that his expert testimony was first-amendment protected speech and that the state couldn't block it on the basis of not having a PE license.
The suit is about licensing requirements for expert testimony in a lawsuit. Not about talking about math in public.
They didn't try to "block" the testimony, per se; they tried to intimidate him by sending him threatening letters, warning he'd be criminally prosecuted and thrown in jail. Those threats were unconstitutional; he sought, and obtained, a federal injunction saying as much.
There was no motion (AFAIK) to block his testimony through legal means.
defense stopped a deposition where he was presenting (top of p4) + 'contacted' the NC board of examiners
he ignored them, defense submitted formal complaint, board ended up seeking declaratory judgment that both his research and his testimony separately violate the Engineering and Land Surveying Act
> The Board seeks a counter-declaration that Nutt's engineering work for the plaintiffs in the Autry litigation, including his engineering calculations, analysis, and resulting expert report, constituted the unauthorized practice of engineering. The Board also seeks the same declaration regarding "testifying at the discovery depositions in support of the work contained in the expert
report prepared by Wayne Nutt."
Fair enough, they didn't block his testimony in the suit.
In general though I think the legal system worked pretty well here. I don't think the board's initial position was crazy. The dispute was escalated to federal court, and the court made a pretty reasonable judgment. Probably could have happened faster though.
Edit: trimmed my comment so that it's less cranky. Merry Christmas!
also NC is a daubert state, which I think means you can attack the testimony's methodology via motion in limine, but doesn't add anything about the expert's qualification
that said the engineering + survey act seems fairly clear that evaluating the safety of a public work constitutes 'practice'. if dude has 20+ yoe he could just take the exam under the 13(a3) long-established practice section
The whole expert testimony thing is a farce anyway.
I am far and away an expert in artificial intelligence, and had one of these “expert witnesses” interview me about my expertise. They hardly knew the basics of software engineering in a modern way let alone modern machine learning pipelines. This is a person who had some patent exposure and generally does small business type of “IT.”
The key differentiator in this case is because they couldn’t make it as a actual engineer they decided to parlay their skills into convincing even less technical people that they knew what they were talking about.
I was asked to be an expert witness for a divorce case where bitcoin was involved. This is a pseudonymous HN account not linked to my real world identity, but I'd been a developer of bitcoin core for 8 years at the time, and had cofounded a very well known bitcoin company. I've presented at multiple bitcoin conferences, and the lightning network was made possible due to changes to bitcoin I personally spearheaded. In fact the set of people this could describe is so small, I've probably blown my cover to someone reading this from that scene.
The expert witness called by the opposing side was someone I had never heard of, who had a certificate from "Blockchain University," and near as I can tell never worked as a software engineer anywhere, much less on bitcoin.
Guess which one of us nearly got disqualified for lack of credentials.
I’ve thought about making a line of collegiate apparel with ornate lettering: SDU. When asked what “SDU” stands for, the wearer would reply, “Signaling Device University”.
The goal of expert testimony is not to find the best technical solution. The goal is to adjudicate a dispute. So yes, objective qualifications trump subjective ones, and that shouldn't be surprising or disappointing.
All of the qualifications you list amount to subjective evidence of clout in an obscure (to non-programmers) programming clique.
On the other hand, the certificate from a Blockchain University probably had a well defined curriculum and criteria for passing.
Yes I was in San Jose in 2013, if that’s the one you’re talking about (technically there was one conference earlier in Thailand, but nobody remembers that one). I was on a panel at the SJ conference.
The case I was consulted for was pretty bog standard “guy claims he lost his bitcoin in a hard drive reformat X years ago; wife claims BS and wants half of peak market value as of the highest historical price.”
Without getting into identifying details, I was able to use blockchain data to independently verify the guy’s claims. Traced transactions, found watermarking features tying them to specific wallet versions. Can’t actually prove that the keys were destroyed of course, but I did show the coins were being spent like crazy from one wallet on one machine, then all activity stopped right around when he claims he reformatted the computer, and the coins sit there on those same wallet outputs to this day, even with multiple market peaks in the intervening years, and many years between then and when he became aware of his wife’s intent to divorce.
That’s the way things go in court cases. Us software developers like to think that the law is a highly rational, proof based system. But in reality it basically comes down to “which story seems more believable” in the end, and being able to point to technical proof is the exception.
I was on the jury for a resisting arrest case and ended up as an alternate. The judge pulled us into chambers and we talked for about an hour.
One of the things that he said that stuck with me was “Everybody thinks it is CSI in here. It’s not. People come here and they tell you [the jurors] stories and then you have to decide which are true.”
Yeah, all the lawyers and judges I've talked to hate CSI (the show) for what it has done to people's expectations. The legal system does not operate like it is portrayed on TV. It really does come down to "what story is more believable?"
Sometimes a story is more believable because there is incontrovertible physical evidence. Normally in those circumstances it'd never go to the court room though -- plea deal in criminal cases, settlement in civil.
> The key differentiator in this case is because they couldn’t make it as an actual engineer they decided to parlay their skills into convincing even less technical people that they knew what they were talking about.
The guy had an entire career as an engineer, he’s now in his 70s and retired.
Be kind. Don't be snarky. Converse curiously; don't cross-examine. Edit out swipes.
Agreed, though being an expert witness is its own skill. You need to be able to coordinate and/or write reports which will hold up under scrutiny in court and also be willing and able to stand for depositions and testimony. This also means that your credentials need to stand up to questioning so your credentials need to be transparent and hopefully unimpeachable.
Unfortunately, it’s work that’s pretty distinct from engineering expertise despite in theory being supplemental atop engineering experience itself.
An "expert witness" is merely an ostensible title meaning someone is available to be paid for their testimony. One irreducible problem is "Who decides who an 'expert' is?"
A former customer of mine was a civil engineer, and also a California-credentialed Professional Engineer (PE), who did code consulting and gave expert testimony about the ASME boiler and pressure vessel code. His code interpretations earned about $100k in 2023 dollars ($50k in 1996) for 45 minutes of effort in 1996. I'd take a guess that an appearance was ~$10-80k depending on the amount of preparation, time, and travel. Needless to say, he had/has a 8-figure house in Saratoga, CA. Finding a niche that is essential to industry and monetizing it well is a fairly repeatable plan for success if one identifies and chooses the right profession.
(PE in California means someone has attained accredited education, worked in a learning capacity at an appropriate type of firm for 4 years, and taken the very difficult PE exam. California licenses generic PEs and fields related and adjacent to construction and civil engineering. It's a shame there aren't specific software or hardware critical assurance PE subcategories.)
It’s a little odd that a civil engineer is being an expert witness for pressure vessels, which are typically the Dobson of mechanical engineers. Though, to be fair, most states leave it up to the individual license holder to determine what domains they’ve are competent in.
The other aspect that’s interesting to me is that, like “engineer”, the term “expert witness” may be too generic to have much meaning. From the related Oregon case linked elsewhere:
>“Courts have long recognized that the term ‘engineer’ has a generic meaning separate from ‘professional engineer”
In this case, it's not for the time period because the specialty of ASME boilers and pressure vessels had legacy CivEs in addition to MEs. These guys had decades of experience on massive industrial, petrochem, and nuclear engineering projects.
NCEES tried to have a software PE but it withered on the vine and was only offered for a few years. I suspect the incentives in industry don’t support it and the only way itv would get traction is if it were forced by regulation.
I probably sound like a broken record on this but the software PE was effectively impossible to get firstly because the Fundamentals of Engineering exam that is the first step to becoming a PE wasn't discipline specific at that time IIRC and contained topics like thermodynamics that very few CS students would have had exposure to. Even for those candidates who got past the Fundamentals of Engineering exam, four years of professional experience under an already certified PE was the next step but there weren't any existing software PEs to do the supervision. Only after passing those two hurdles could the candidate take the software PE exam and become a PE. So basically NCEES made no honest effort to make attaining a software PE realistically possible.
It’s possible that your conception of what the software PE should’ve been differed from the opinion of NCEES. If I remember correctly, it was controls-focused, which makes sense to me given what PEs are normally called on to stamp. If the focus is on safety critical public works, controls is the biggest risk in terms of software development IMO.
So in that light, I want a software PE to know things like thermodynamics if they are writing controls code for a nuclear reactor or aerodynamics if they’re writing avionics code for an aircraft. In my experience, there’s a lot of problems created when SWEs don’t consider the physical dynamics of the system and having some breadth of engineering knowledge can mitigate some of that. Breath of engineering knowledge is the aim of the FE exam. There are oodles of materials to study specifically to pass the FE, so I don’t think that’s really an hurdle for a properly motivated person. Also in that vein, I want them with real experience under a PE. It’s a hurdle, but there are plenty of PEs in domains like oil & gas, aerospace, automotive etc. to work under. But if you think you’ll can work at a FAANG or adjacent SV role and get a PE, it’s probably harder to find a senior PE. I also don’t know if it adds much benefit to a web developer.
A bit of additional context: the dispute stemmed from the fact that Nutt was asked to give testimony about stormwater management systems, not chemical engineering. Unlike chemical engineering, this subject is within the purview of the Board, so they believed that their ban on unlicensed expert witness testimony should apply.
From what I can see, the court here ruled that the ban itself is unconstitutional, so not only do they need to leave Nutt alone, but they're not allowed to enforce the ban on expert engineering reports at all going forward.
>> The suit is about licensing requirements for expert testimony in a lawsuit. Not about talking about math in public.
It pretty much says the state licensing requirements do not apply to expert testimony or preparation of reports supporting such testimony, which in this case they specifically say "doing some math" in the decision.
The understatement of the century. It would be like calling someone trying to practice law without a license to be 'A restriction by the state from talking about words.'
The reason this was upheld by the court was because he was giving public testimony, as opposed to rendering a professional opinion for a client (Which would have been absolutely been under the purview of the relevant licensing board).
> The understatement of the century. It would be like calling someone trying to practice law without a license to be 'A restriction by the state from talking about words.'
> The reason this was upheld by the court was because he was giving public testimony, as opposed to rendering a professional opinion for a client (Which would have been absolutely been under the purview of the relevant licensing board).
If he was was giving testimony that was protected by the first amendment and not attempting to work as an engineer, saying "It would be like calling someone trying to practice law without a license to be 'A restriction by the state from talking about words.'" seems even more misleading than the headline since he wasn't actually attempting to do something analogous to unauthorized practice of law
> The understatement of the century. It would be like calling someone trying to practice law without a license to be 'A restriction by the state from talking about words.'
I don't quite understand why this is a problem? If a parrot is able to perfectly defend someone in the court of law then does it really matter if it never had a license to do so?
> Yeah but I wouldn't trust half the people who build software projects.
Unlike engineering, or medicine, the overwhelming majority of software projects are not life-critical.
I wouldn't build a bridge the way I build software. I don't work that way because I can't be trusted, I work that way because the stakes of failure are low.
Security from these kinds of abuses isn't strong enough. This guy's defense was free, courtesy of a public interest group [0]; but litigation is an unaffordable non-option for most people. You're fighting government agencies: people with infinitely more resources than you, and who fear no personal consequences if their judgement is wrong. (Or if they're just being vindictive).
WILMINGTON, N.C. (WECT) - Chief Judge Richard Myers ruled on Wednesday that the state violated the First Amendment when it told retired engineer Wayne Nutt to stop expressing his opinions about engineering without a state license
Institute for Justice is an excellent non profit and all donations are fully tax deductible, if you are looking for some year end donations. They take up fights for the common man that when properly fought to conclusion affect far more people. A great organization
Licensing regimes have a valid purpose: protecting those who have to rely on qualified engineers, when they calculate and advise that something is safe and fit for purpose.
Restricting those who raise concerns that something is not safe or fit for purpose is the opposite.
Yes, and having credentials is no guarantee that you know what you're talking about. The licensure boards themselves will sometimes warn you that a licensee's credential is in no way a guarantee of any sort of quality and you need to apply your own judgement in assessing the person's qualifications. This makes sense... At the end of the day all the licensure boards can really tell you is if they licensee passed a test and if they've had a history of complaints.
Yup, I've had doctors prescribed medications which caused issues. When I looked into it myself there was publication after publication of people taking the medication and having the exact problems I had.
Scary as fuck, especially when one doctor threatened to lock me up if I wouldn't take them.
I get your point, but an expert witness in a trial is not usually solely relied on. Normally the other side also has an expert (as was the case here) and the opposing lawyer has the opportunity to question an expert about such things as whether they are licensed.
However it's true that there are cases where such an expert might be solely relied on, for example they might be brought in by the judge. That happens in family court here, where a judge might appoint a neutral expert to evaluate a child's situation, and indeed there have been complaints that such experts were not sufficiently qualified or regulated. In that case, I would agree that licensing is desirable.
Professional engineering is as much 'talking about math' as performing legal services is 'talking about words'.
Both need a license if you're doing it for a living. Neither needs a license if you're just shooting the shit, and don't try to put the profession's weight behind you.
In this case, though, this was closer to political, rather than professional speech, and ended up protected.
The thing I worry about with expert witness testimony is that if you assume a spherical cow then you can make all sorts of logical deduction work in your favour.
Something feels fundamentally uneasy about an expert bringing of supposedly rigorous scientific facts to only one side of a court argument. Cases that come to a court are based on much fuzzier, human condition concepts like “did they mean to do it?”, “was it in the heat of the moment?”, and “did they know what they were doing was wrong?”. Even more so when it comes to the sentence which is handed down.
I think it’s also the same sort of queasiness I feel when I see a paper that states that an exoplanet has butterflies due to the presence of a certain kind of Nitrogen molecule in its atmosphere. The science of the molecule detection is bang on but the inferred conclusion is not.
agreed, I read the thing (without following any reference), and Common Law court orders are generally quite ok to read out of context, the procedure itself is explained in the text.
In my home country of Austria it's easy to distinguish a federally licensed engineer without forbidding the use of that word for people who are not licensed.
A licensed engineer may put the title "Ing." in front of his name (e.g. "Mr. John Doe" becomes "Mr. Ing. John Doe") in communication, everyone else can still call themselves an engineer without issue but are not allowed to use that specific issued title in front of their name.
A similar solution could have been found here, where people who are licensed can use a suffix like "CE" with their name.
Federal licensing does not mean that the dudes in question know what they are talking about. Titles and papers are, at the end, only titles and papers. If you live long enough you meet enough clowns with PhDs.
There are liability questions attached to formal qualification.
A company that sends out unlicensed / untrained staff to fix something will have a harder time convincing a judge that they did their due diligence if something goes wrong.
I am not saying this is good or bad, just that it is legal reality in parts of Europe.
Something similar is brought up in the decision —- the licensing board could have had the licensed engineer's stamp their reports as a way of marking them as produced by licensed engineers.
That the board just tried to shut Nutt up instead is one of the reasons they lost.
Or even targeted certifications, I would not be opposed that the people writing code for nuclear power plants would have to pass a certain training + test before doing so. It doesn't remove anything from other people.
I'd take as an example the welding industry, there are bajillions of domains, with various requirements depending on what's at stake. There are some interesting forces at play, some domains do 100% weld testing, so they can recruit non-certified welders, because they would see the problems, generally they have a 3 strikes system, others would not take the risk and want to see certification, and some underwater welders have to pass a welding test immediately upon entering the water (then the crew pulls the coupon out, cut it and gives the ok), before really diving and doing their task, every day.
The vast majority of engineering is done under industrial exemptions so licenses don’t apply anyway. The main concept is mitigating risk, and there are multiple ways to skin that cat.
That’s easily games as well, though. Bernie Madoff was able to screw over a lot of people based largely on his reputation. While bad, at least that was “just” money and not something safety critical.
No I had just read the link provided and assumed it was 2023 given the article date. Upon reading the full brief I'm now aware of my mistake. Thanks for pointing it out.
I think whats happening in these cases is someone in office gets annoyed that someone else is being critical of them, or their work, or making them look bad. So they lean on the levers they have to make these problems go away. I live in the city where this traffic light mess happened and to me it's an embarrassment that someone tried to use the law to strong arm this guy into shutting up.
The certifications are (ostensibly) there to make sure the people who are doing the work are qualified to do it - a protection against scammers and fraudsters doing shoddy engineering work and endangering people. If instead the powers that be uses it as a tool to silence people, it becomes simply a corrupt access point to power.
It's not a dumbass certification. When briefly looked into it last millennium, you'd best be a recent engineering student whose up on some calculus and physics and I don't recall what. But it also seemed geared toward civil engineering, and in many places large construction projects do have to be signed off by a P.E. But if we had to throw away everything designed by regular ME, EE, and SWEs without a PE involved, we'd be in the technological dark ages.
That is very much an incorrect opinion. I know two people who went to very good schools and completed their PE certifications in different states, both of whom described it as quite challenging. It makes sense in those cases because you’re talking about someone getting a professional certification involving positions where they are designing things which, if they fail, are likely to result in a number of deaths.
You’ll be pleased to know how little I know of what goes into being certified a homeopathic practitioner by the Council of Homeopathic Certification too.
I am glad that software engineers don't have a certification. Man, could you imagine the struggle? You report a bug and it's closed as "Not reported by a PE". You build a better product, but you can't sell it because you're not a PE. You find a horrible security flaw in software but they prevent you from telling the news because you're not a PE.
God bless freedom and the First Amendment. And God bless software for being a field so concordant with America's principles.
The SWE may not have a certification but their products sometimes do. If you disagree, try writing avionics software without having it going through a certification process. They aren’t perfect, but to the OPs point, they serve an important function in terms of risk mitigation.
The suit is about licensing requirements for expert testimony in a lawsuit. Not about talking about math in public.
The opinion is here: https://ij.org/wp-content/uploads/2023/12/Nutt-v.-Ritter-opi...