Credibility of Expert Witness Based on Objectivity
An Expert Witness Is Above All, Objective
Merlin Taylor
October 7, 2011
The credibility of an expert witness’ testimony is largely based on their ability to have an objective opinion.
Objective: not influenced by personal feelings,
interpretations, or
prejudice; based on facts; unbiased: an objective opinion.
In representing a client on a construction defect claim, I am often faced with an opposing party who submits an “expert report” that is nothing more than an estimate, provided by a contractor. I believe any contractor is more than happy to provide an estimate for services. However the contractor’s estimate is later presented by a party involved in a dispute, as proof of a defect or evidence supporting their claims in a law suit. It is my experience and firm belief that when a vendor, subcontractor or tradesperson is asked to provide a bid for work, that is precisely what will be delivered. Little thought is given by the contractor, as to why they are providing the estimate. I believe a qualified contractor’s estimate to perform services is not objective at all. Indeed what could be more subjective?
If I were to ask a remodeling contractor or kitchen cabinet company to come to my home and give me a bid for a new kitchen, that business person is more than happy to accommodate my request. The fact that my kitchen is only 5 years old and in very good working order, is of little interest to the remodeling company. If I want to replace my kitchen, regardless of what reasons I have, I will receive a proposal for the new remodeling work and kitchen cabinets etc. This is an example of course; however the estimate, this type of evidence, is now deemed an expert report and submitted as proof supporting a claim.
Another example I often see is a contractor who submits a quote to remove and replace the exterior stucco cladding on a residence. The stucco contractor is glad to provide anyone with a detailed quote to remove and replace exterior stucco cladding. This estimate is later submitted by a party to show proof that the stucco is defective; and the amount listed in the quote is “how much it will cost to repair the damages”. The quote provided by the contractor is just that, a quote. When the parties use the quote as an objective expert’s evaluation of a possible defect, is when it becomes a misrepresentation. Certainly the stucco contractor is not concerned with problems which may exist with the existing stucco. The stucco contractor is selling an exterior siding product and providing an estimate per the party’s request. The stucco professional was not asked to render an expert opinion about the integrity of the existing stucco. Again, how objective can a businessperson providing a construction service be? That said their estimate is entered into evidence to substantiate the claim. Indeed it adds a false credibility in a dispute about the integrity of the original stucco work.
I believe some parties involved in disputes are not interested in an expert’s objective and honest opinion. They seem to be blinded by the issues and become obsessed with proving their point at all costs.
