Construction Expert Witness
10 Inside Secrets to Better Construction Expert Witness Depositions & Testimony
September 9, 2014
An attorney and their expert witness should have the same end goal in mind; they just walk on different sides of the fence to get to that goal. This list is to help you communicate as you walk along that fence and get the best out of your expert witness, and they in turn, can make you look great.
1. Provide an unbiased overview of the case and understanding of the documents.
The problem, from an expert witness perspective, is we frequently receive a sketchy case briefing that is given with few facts, but with a heavy dose of emotional bias. Right or wrong, attorneys often give us the emotional side of the story and sell us on the unjust position that their client is in. Then with few facts in hand and after seeing only one side of the story, you then ask if we can help. Of course we can, we are anxious to help – and right off, our position is already tainted and biased.
The solution: present facts – give both positions – pleadings are a good starting point. Question your expert. Encourage questions from your expert. Be open and then receptive to debate and healthy confrontation, good or bad, and then work together to find the best position for your client.
2. Involving your expert early on quickly gives you the best information so that you can make the best decisions.
Go with the expert to the site; informally review the merit of the case to determine if it has substance. Consulting with an expert early has the potential of saving you both time and money.
The problem, often we are brought in at the last minute and expected to perform miracles. If there is not enough time to properly evaluate documents, do site visits, and prepare, our testimony could be flawed resulting in an unfavorable judgment.
Be cautious of experts who want to please – and give testimony according to what they think you want to hear. Do you want to risk your reputation and be blindsided during trial on the opinions and testimony of an expert who does not help you to understand the downside of your position?
3. We can provide you better results when we have a properly defined scope of our role.
If a report is to be given, formalize as specifically as possible, in writing, the scope of expectations that you want your expert to perform. Help us to focus on what is important to you.
4. More success comes when adequate time is spent by attorney and expert together in preparation of deposition or trial testimony.
Role play with your expert, ask the questions that opposing counsel would ask.
1. Get a feel for the testimony that will be given.
2. Make sure that the expert understands the issues and is fighting the battles that count.
3. Never presume you know what your expert is going to say.
4. Ask “How would you respond to this or that question.”
5. Challenge opinions. Ask for basis of opinion. Be sure that the expert can back up the opinion. Make sure that the experts opinion is based upon fact and is not coming from you.
6. Review how best to deal with hypothetical questions or “what if” questions that appear to lead to improper conclusions, or at least make it appear that it might be possible.
7. Review and discuss areas that you don’t want your expert to get involved with. (A clearly defined scope of the issues you want the expert to focus on allows the expert to respond that he/she wasn’t asked to analyze/review/work on that, so at the moment, not prepared to discuss.)
8. Review documents that are helpful to the case, so that the expert can refresh recollection of documents.
9. Instruct your expert to “tell the truth and give honest testimony.”
a. Gives the expert something to say when questioned about what was discussed in preparation meetings.
b. Gives you credibility with judge and jury – even though this action is expected.
10. Review the questions that you are going to ask and find out the reasoning behind the answer you receive.
The expert’s role goes beyond helping you recognize a construction problem, standard of practice or estimate; it is also in giving you a clear cut understanding of the whys and wherefores of the construction defect, the estimate, the building code violation or the detail related to the construction industry standard and practice. With proper information, knowledge and understanding, you will:
i. Be able to craft and ask the best questions to get helpful and favorable responses;
ii. Know why you are asking the question.
5. Whenever possible, allow your expert the opportunity to view opposing experts’ testimony, depositions, reports, etc.
We can find holes, inaccuracies and unsupported facts, etc. that can be challenged in reports, pending depositions or rebuttal testimony.
6. Build credibility in your expert beyond qualifying the expert.
While seemingly obvious, encourage honesty, even if painful to your cause.
Other tips to build credibility: avoid deception, half-truths and the perception of collusion, don’t ask your expert to point finger of blame and keep expert from the appearance of being biased.
7. Getting blindsided by new or otherwise not seen documentation makes us look foolish.
Provide documents timely so that they can be reviewed and we can help you properly prepare your case.
8. Site inspections are a major key to get the full picture of the case.
When we inspect the site, we can often see other items of concern that haven’t already been addressed. In contrast, it is difficult to sit on the stand and to have to respond to the question, “How can you possibly render that opinion, or present that estimate, when in fact you haven’t even seen the project/building/home?”
9. To improve testimony:
Review/teach/encourage your expert to look the jury and/or the judge in the eyes when responding to questions. Have them speak up. If necessary, request that the question be repeated or rephrased if it is not understood or request that question be repeated to make sure it was heard correctly. One final way to improve testimony is to know that it is alright to say, I don’t know.
Remind your expert to be factual and accurate in statements. Finally, review their report with them, and point out the areas you believe will be attacked and how to answer those attacks and ask the tough questions that might be asked.
10. Constructive feedback – is appreciated and will help the expert do a better job for you in the future.
“You did a great job” – is heard too often and not always justified. Allowing us an opportunity to receive specific comments that improve strengths and weaknesses for future testimony are appreciated. If we expect you to hear our honest opinion – good and bad - in your case, we want to hear your honest opinion on our testimony – good and bad.
The content of this article is intended to provide general information and as a guide to the subject matter only. Please contact an Advise & Consult, Inc. expert for advice on your specific circumstances.