Construction Defect Litigation: Hiring an Expert Witness

[fa icon="calendar"] May 11, 2021 9:00:00 AM / by Mark McGivern, CSI, Aff. M. ASCE

Great expert witnesses are a critical part of a construction defect litigation team from start to finish. They can make or break your case, so it is critical to work with an expert who understands the technical side of the case and who can communicate clearly and objectively with all parties involved.

So, what exactly is the role of an expert witness? Their responsibilities include educating lawyers as they investigate and develop the case; determining documents needed for discovery, witnesses to depose, or data to be developed; and helping attorneys understand technical issues like design, materials, codes, standards of care, practices, and construction contracts.

 

Qualifying and Vetting Experts

It is important to work with an expert with the right experience for your particular construction defect case. To find the best expert witness requires some research. The place to start to understand an expert’s experience is to review their resume and list of previous testimony. The next step is the interviewin person, by phone, or by videoto help understand the expert’s professionalism and his or her credibility. 

 

Objectivity

Experts are not advocates; advocating is the job of the attorney. It can undermine the case and the expert’s reputation if he or she does not remain objective at all times during the engagement. When interviewing to choose an expert, ask questions with an eye towards getting a sense of their objectivity, such as asking for details about specific opinions, especially difficult ones.

Experts who work for both plaintiffs and defendants need to remain objective, or their words from one case can be used against them in another case. In a conversation with a potential expert, attorneys need to understand the client’s actual contractual, regulatory, and standard of care duties regarding the construction defects.

 

Experience

In general, look for someone with significant experience in the area of construction the case involves. Depending on the complexity of the case, it may not be possible to find an expert with experience in the exact situation.

In that case, there are two options:

        • Retain an expert who has years of broad experience in the industry, but who may lack specific experience in the issues that the case concerns. In many instances, broad experience will more than suffice.

          Caution: The opposing side in the case may argue that analogous experience is too far outside the expert’s experience or training, making them appear less credible.
        • Retain an expert with very specific expertise in a particular area of the case. For example, a materials expert with experience in the chemistry and physical properties of sealants may qualify regarding the material failure, but may be barred from, or limited in, testifying about the cause (pathway) of water intrusion.
          Caution: Experts are limited in what they can testify about, and if he or she oversteps and discusses an aspect outside their expertise for this case, the testimony can be limited or challenged.
           

 

Education 

Education is an especially relevant credential when seeking an expert’s opinions related to design or manufacturing defects, standards of care, and contractual duties. A bachelor’s degree in engineering or architecture may be sufficient, provided the expert also has practical experience in that discipline. Advanced degrees always augment credibility in the minds of jurors when it is directly related to the subject matter about which the expert is testifying.

 

Training

As in most fields, education does not totally prepare an expert for work in construction, and additional training while working is required. This makes on-the-job training and current and relevant experience just as important as education, especially when the expert graduated a long time ago. Experts who can demonstrate experience beyond the classroom bolster the basis for their opinions and add to their credibility with opposing counsel, opposing experts, and judges and arbitrators. 

 

Experience

Relevant experience is often the most important factor in qualifying an expert. Ask the prospective expert to explain specific experience on the subject at hand, and follow up with questions about their process and how they arrived at their opinion. 

 

Licensure

A license within the state where the case is taking place is one criterion for determining whether an architect or engineer will be recognized as an expert by the court. Some states prohibit non-licensed individuals from performing any type of work where they represent themselves as engineers or architects, including expert work.   

Additional valuable expertise that adds credibility to the opinions of an expert:

        • Certifications
        • Current continuing education
        • Publications
        • Public speaking engagements
        • Familiarity with current codes, standards, and best practices at issue in the case

 

Conflicts

Given the complexities of construction defect cases and the number of parties often involved, it is quite possible that the expert you choose has testified for another party in the current suit or for the law firms representing them. That does not prohibit them from working with your team, but it is necessary to know their role in the other case and how they helped the other legal team.

 

Previous testimony

It is important to understand how the expert has testified in other cases. Get a list of every case the expert has testified in (depositions included), and understand the issues and the expert’s position. If the current case is similar, you want to ensure his or her opinions are consistent, unless the circumstances are substantially different.

 

Disqualification

Confirm that the expert has not been sanctioned, sued, or had their license revoked.

 

Defense v. plaintiff opinions

To be credible to a judge or jury, experts need to be, and also appear to be, objective.  The opposing lawyer can make an expert who testifies most of the time for the plaintiff (which is not uncommon) appear biased rather than objective.  Find an expert with a balanced resume of working as an expert witness.

 

 In many construction defect cases, there is an opportunity for the expert to be more than just a witness. Great expert witnesses become part of the strategizing team, providing valuable information to help build the case. Choose wisely—the outcome of your case depends on it.

If you are looking for help with a construction defect case, contact us today. Our team of experts is ready to help.

 

Download your copy of 8 Questions to Qualify Your  Construction Defect Expert Witness

 

Disclaimer

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, Architecture, Forensics, Insurance