Construction Defect Cases Use of Expert Witnesses
Practical Use of Expert Witnesses in Construction Defect Cases
Richard R. Volack, Esq. and Don Erwin
December 4, 2011
Construction defect litigation is inherently complicated. This is because construction involves a multitude of parties with separate contracts that create potentially divergent, and, at times, conflicting interests and motives.
One source of complication is the accumulation of large quantities of documentation to be reviewed and analyzed, including e-mails, drawings, specifications, correspondence, meeting minutes, purchase orders, etc.
Another source is the continuing evolution of design styles and construction methodologies, which has resulted in new and complex ways for projects to go wrong. New products may not perform as promised; new systems may not have all the kinks worked out, and radical designs may result in unanticipated problems. The construction process has also become even more complex in recent years with the exponential increase in the number of additional parties that have been included in the process.
The combination of these trends has resulted in a new environment in which construction defect litigation can last far longer than the construction process and may involve nearly as much money.
A frequently disregarded but critical element necessary to pursue or defend a construction-defect claim is the retention and strategic use of the construction-defect expert witness.
But what characteristics are needed to be a good construction-defect expert witness?
Retention of the Right Expert
An expert needs to have a wide range of experience and skills to be effective. At a minimum, most states require that an expert be licensed in the jurisdiction where the trial is located in order to testify.
In addition to the above, an expert witness should possess the following skills and attributes:
A. Knowledge and Experience in Relevant Issues
The expert must have hands-on experience, not just academic or litigation-support experience. Practical experience allows the expert witness to put the facts into the context of the real world and not simply address them in the abstract.
The expert should be familiar with the type of project at issue and the technical issues peculiar to the project. This will allow the expert to understand the roles and responsibilities of the various parties.
Further, the expert must be familiar with the customs and practices of the community of professionals involved with similar projects in similar conditions. This will help the expert to distinguish between a reasonable assertion and unreasonable assertion of a deviation from the standard of care.
Also, the expert must be familiar with different types of design and construction contracts at issue and the contractual obligations such contracts create.
B. Knowledge of Accepted Scientific Methods
In addition to the above, the expert must use and employ scientific methods to come to his/her conclusions. An expert must also be able to develop or withstand a so-called “Daubert” or legal challenge, to the expert’s methods. The qualified expert must be able to
• understand accepted testing procedures,
• analyze and interpret data from the testing,
• formulate conclusions based on the data, and
• critique other interpretations.
C. Knowledge of the Legal Environment
Being a truly effective expert demands a working knowledge of the legal process. It is necessary for the expert to understand the different roles and the different standards of proof that apply to its consultation, depending on whether he/she is retained by the plaintiff or defendant.
A knowledge of the legal process, including which parties bear the burden of proof, will guide the expert through strategic issues such as what to put in writing, what to discuss with opposing experts, whether to retain the expert as a consulting expert, what type of testing the expert would recommend, and in what areas the expert’s ability to testify is limited.
The expert should also have experience preparing for and participating in the mode of dispute resolution used—mediation, arbitration or trial.
D. Knowledge of the Working Style of the Attorney
The relationship between an expert witness and the attorney should be collaborative, trusting and supportive, and the personalities of the two parties must be compatible. An attorney should share with the expert witness the “big picture” so that the expert can focus on the important issues.
It is also critical for the expert to have the trust and respect of the attorney. This requires that the attorney accept the expert’s opinion, and respect any limitations on his/her opinion.
E. Knowledge of the Client and How It Operates
An expert must be familiar with how the client generally operates. This would include such items as the client’s level of sophistication, its inner political workings, its staffing methods and its approach to resolving issues.
Following the advice set out above for the strategic selection and use of an expert can greatly increase the effectiveness of the legal team, and, in turn, influence your chances for a successful outcome for your case.