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Construction Defect Litigation: Engaging Your Expert Witness

[fa icon="calendar"] Sep 1, 2015 4:30:00 PM / by Mark McGivern, CSI, Aff. M. ASCE


About this blog series:

An expert witness can make or break your construction defect case.  Unlike many other types of litigation, construction cases (of all types) are often “expert driven” in determining ultimate liability and damages. The ability of the expert not only to qualify but to work and communicate clearly and objectively with counsel and client is key.

Having served as an expert witness in hundreds of cases over the past twenty years, I believe that the expert witness who can distill complex processes into plain and simple language leaves an indelible impression on judges, juries, arbitrators, and other triers of fact.  

In this series of blog posts, I offer insight gained from my experience as a forensic expert, as well as in managing and working with other experts on cases both big and small. My experiences include working as a litigation consultant to assist carriers, counsel, and corporate clients in construction defect, breach of contract, E&O, and property claims litigation in a multitude of venues throughout the United States My hope is that those of you who retain expert witnesses will find value in understanding the perspective from the other side when vetting an expert you may not have worked with before. Even if you know the expert, these steps may provide you with insights that will enhance your dialogue with the expert and maximize the relationship and the outcome of any retention. 

Whether you are engaging an expert on behalf of a litigant party or as a non-testifying consultant, these tips may provide insights that will help to ensure that the engagement meets your needs and expectations.

Engaging the Expert

As previously discussed, the qualification process will provide you with insight as to the expert’s view of the 

case, and at least an overview of how the expert would go about the investigation. The engagement process now puts pen to paper to sort out the specifics, starting with the initial scope of work, timeline, and budgets. If you are retaining the expert early in your case, the scope of work may not be fully defined. In this situation it is common to establish an initial scope and budget, with periodic phased updates as the investigation and discovery advances.  In circumstances where the discovery has already advanced, the expert may be able to provide a single-phase scope and budget (up to or through deposition).  In either case, preparation of the scope and budget is an essential tool for both counsel and expert to set the terms and expectations at the outset.

Scope and Budget: Setting the Stage

The scope of work and budget may be prepared either in writing, or orally (depending on counsel's direction).  In either case, discussing and agreeing upon specific deliverables and budgets is key.

For example: assume, hypothetically, that an expert is retained to investigate a condominium project for alleged building envelope defects, including water intrusion, structural damages, and claims of design and/or construction defects.  However, before the expert can commence the investigation, the scope of work should be prepared, with the work divided into phases.  The manner in which the scope is divided will depend upon the known facts specific to each case, including but not limited to factors such as site accessibility, the discovery schedule, the necessity of destructive or other forms of testing (e.g., window vacuum chamber testing), and counsel’s litigation strategies.

The scope of work should also include a base estimate of hours for each task, and should allow for a contingency, thus establishing a high/low range of budgeted costs.

A well-prepared scope of work may include a list of major deliverables for the expert and client to agree upon. Such deliverables typically include:

  • Review of the problems or complaint;
  • Observations from the initial review of key documents;
  • Observations from the site investigation;
  • A request for additional documents; and
  • Project plan, either preliminary or by phase.

Utilizing this process has the added benefit of fostering discussion about the value of each deliverable as it relates to the expert’s opinions.  It may also initiate a dialogue concerning the standards, methodologies, and methods the expert will utilize. This discussion is often very helpful—from the perspective of both counsel and expert—and in some cases may even circumvent problems down the road.  For example: if destructive testing is required for a window system set in stucco, discussions should address the question of which tests are required, and what the protocol should be.  How many of each test must be conducted in order to obtain a data set that is statistically sufficient to withstand both a Daubert-type challenge and a cross-examination attack on reliability? The expert should be able to assess whether the proposed types, locations, and quantities of testing will satisfy the requisite standards and achieve scientifically reliable results. In short, having this discussion early on can (i) help define and refine the scope of work, and (ii) potentially inoculate the expert against reliability challenges.

In some cases, the scope of work may change due to circumstances such as additional parties being joined, new claims, new documents, or additional experts being introduced. Examples include:

  • Additional claims for damages as the investigation develops, requiring additional site work and review;
  • Additional discovery beyond what was identified in the initial retention;
  • Additional parties brought in as the investigation develops;
  • Amended complaints or allegations;
  • The need for cost estimating, allocation of responsibility to the parties, or other additional services;
  • Introduction of claims for product defects, in addition to workmanship and/or design defects;
  • Time and expense required to research products or analyze contracts of third parties;
  • Additional testing; and
  • Impact of the court’s rulings or modifications of scheduling orders.

However, preparing the scope in the manner outlined above allows expert and client to discuss scope-related expectations prior to moving forward.  The budget, which is an estimate based on the initial scope, is a working tool that provides a baseline from which to monitor the scope and costs.  That baseline can then be used to track and account for unforeseen changes in the work.  Having this resource at hand benefits client, counsel, and expert. Again, whether this is done verbally or in writing, the key is that understanding the baseline of the assignment will facilitate clear communication of goals, objectives and tasks throughout the investigation.

Document review is often one of the biggest unknowns at the inception of the engagement. It is generally a good practice to: (i) provide the expert with the most comprehensive list of documents on hand at the inception; (ii) discuss with the expert the relevance of documents for review; and (iii) to ask for a budget to review those documents. From this discussion, the expert can often get a jump start on determining what additional documents may be required, thus giving counsel advance notice and an opportunity to take control of discovery, as well as to move the expert’s investigation along in a timely manner.  If a significant amount of information is missing at the time of the initial scope and budget, this is a good time to talk about it and to get an idea of what the expert might need, and to identify how that additional information will be essential to the expert’s opinions, the scope, and the budget.

The Takeaway: Good Communication Up Front Pays Dividends Later

The engagement process sets the table for your working relationship and establishes a baseline with respect to the deliverables, the timeframe, and the costs associated with getting your expert’s findings.  It is also an opportunity to gain some additional familiarity with the technical principles at issue and the soundest methodologies for resolving those issues. Moreover, just as your expert will be helping you by explaining the principles and uncovering the facts relevant to your case, he or she may very well help you to anticipate the technical strengths and weaknesses of your opponents’ case. An effective line of communication between client/counsel and expert is very often essential to obtaining a just outcome; that line should begin no later than at the critical process of engagement.


Are you qualifying an expert witness?

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Each retention and investigation is different. The comments and opinions expressed are general in nature and are not intended as legal or expert advice for any particular investigation. Always seek qualified counsel to advise you on your particular case or investigation before retaining an expert. The processes and considerations discussed are general in nature, and may not be applicable to every case. 



Topics: Root Cause Analysis, Litigation Support, Construction, Construction Defect, Forensics, Insurance