Being an Expert Witness in Construction

Ramani Sundaram
Faithful+Gould has provided expert witness service to many clients; plaintiffs as well as defendants.

Through movies, novels or TV shows you may be familiar with the term ‘expert witness’. According to Wikipedia.org, “An expert witness is a witness who by virtue of education, training, skill or experience, is believed to have specialized knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon …” Some of you may have seen the movie ‘Concussion’, released at the end of 2015. In this movie, Will Smith who plays the role of a pathologist (Dr. Omalu), is shown testifying as an expert witness. Professionals like doctors, accountants, engineers or experts in any particular field support the litigation process to resolve disputes. Expert witnesses may be available in any field - attorneys often seek the help of professionals in complex legal cases and professionals leverage their expertise and knowledge to act as expert witnesses.

With the increasing complexity of construction, project delays, payment disputes and fights over construction plans and specifications are becoming increasingly common. A contractor may feel compelled to pursue extra claims in court as a result of unexpected site conditions, faulty design or changed specifications.  Similarly an owner may be taking a legal action against a contractor for any cost, quality or schedule related issue. Construction professionals also come across many real estate and property development issues. Consultants offering expert witness service assist their retaining attorneys with professional evaluations and provision of testimonies.

Consultants offering expert witness service assist their retaining attorneys with professional evaluations and provision of testimonies.

If it is a cost associated issue, experienced estimators may act as expert witnesses to support prosecution of cases. Experience in related fields is an expert witness essential, and in addition, professional certifications and being a subject matter expert with authorship of technical articles or presentations will also add to the credibility of an expert. Being an expert witness could be an add on to the regular job functions for an experienced estimator or it may even be a full time work for some, depending upon the demand in their field of expertise.

Girish Mehta (GM), a chief estimator in our New York office has worked with many attorneys as an ‘expert witness’. I sat down with Girish to ask a few questions about his experience in this field:

How long have you been functioning as an expert witness, and what exactly do you do in this role?

GM: I have been an expert witness for the past eight years. As an expert witness, you work with the lawyer who is engaged by the plaintiff or defendant. You start with analyzing facts and data that have been provided to you. Deliverables may include preparation of cost estimates, reports detailing your findings, professional evaluations, review and analysis of other’s reports and estimates, followed by oral testimony given under oath during pre-trial depositions and if required, during trials.

Can you tell me about preparing for the testimonies?

GM: Please bear in mind that all proceedings like presentation of evidence, questions and answers may be video recorded during depositions. It is essential to be well prepared and confident about your reports and conclusions. If the report is not well written or if it has ambiguities, it may invite more questions during cross examinations. Along with the report, under subpoena, you should be ready with records of letters, emails and other documents including draft copies of estimates and reports.

You should remember that the opposing party also comes with a team of experts and you need to be prepared for facing questions, dealing with cross examinations and spending long hours at the court. You should be honest and your report should be accurate. When questioned, you should be ready to explain any line in your report.

What type of cases have you been involved with?

GM: I have mostly worked with attorneys representing government or public agencies and more often on the defendant side that pertains to the ‘Eminent domain law’ that allows a state or government to take private property for public use or to undertake projects for public benefits. Disputes arise from the private property owners regarding the compensation paid by the government. My estimated construction cost for a hypothetical building acts as one of the factors for determining the final value of the property. Valuation documents, expert witness reports, reviews and testimonies act as the basis for the court's judgement.

Valuation documents, expert witness reports, reviews and testimonies act as the basis for the court's judgement.

I have also worked on the owner side in a case filed by an owner against a contractor for defective construction and another one in which the contractor did not finish the repairs correctly. Another one was an owner versus the architect case due to design issues.

One unusual case was regarding tax concessions claimed by an owner for donating air rights to another organization.

What is the role of an expert witness during the trials?

GM: When there is a trial, there will be a Direct as well as a Cross examination. Depending on the case, each may last for a couple of hours mostly as pre-lunch and post-lunch sessions.

Direct Examination – The retaining attorney begins with an overview of the expert witness’s qualifications, credentials, professional experience, background, etc. Then the attorney asks questions or for clarification of details contained in the report. The intent of this examination is to let the court know about your report and its salient points. If you prepared an independent estimate, you may have to explain the basis of your estimate, qualifications, and assumptions, markups for general conditions, profit, contingencies, soft costs and so forth. The attorney may brief you about the process and the questions that he may come up with during the ‘Direct examination’ but can not tell you what to say. 

Cross Examination – This is when you face questions from the opposing team of experts. You may be challenged on your assumptions, pricing and other findings. The opposing experts may try to disprove or discredit your findings or statements. It may be necessary to produce the sources and backups on which your reports and findings were based, even if some of them might have been marked as ‘confidential’ where they originated (confidentiality is protected by the court).

Not all cases go to a trial. Sometimes, you may be hired as an expert witness only to advise the client whether it will be worth to proceed with a lawsuit against another party or to help a client to develop its strategy for fighting a case. There is also a likelihood of out of court settlements for some cases.

Do you have any suggestions based on your experience?

GM: Cross examinations can be initmidating bearing in mind the sometimes combative nature of an attorney that may be attempting to undermine your credibity. For instance, I was once asked to answer a question only in ‘yes’ or ‘no’ form, but I objected and the judge permitted me to elaborate and properly explain my answer. Remaining calm and confident and being assertive but polite is essential, as becoming aggressive may turn out to be counterproductive.

As a technical expert, you need to limit your involvement to the facts relating to disputed technical issues and leave the legal advice to others.

During cross examination, when the opposing team poses a question, rather than jumping on it to answer, it is advisable to pause for some time to allow your attorney to take time for objection, if necessary.

You need to look and conduct yourself in a calm professional manner and be respectful toward everyone during testimonies or trials. There is a danger of saying too much, and my advice is to say only what is necessary and skip things that are not pertinent. As the court reporter will be recording every word, speak slowly and clearly. It is also good to prepare yourself using mock trial technique, if possible.

Attorneys may represent private as well as public agencies. Sometimes you may not be able to take up cases if it involves your company’s existing clients or potential future clients to the extent a conflict of interest may exist, or the appearance of a conflict.

As a technical expert, you need to limit your involvement to the facts relating to disputed technical issues and leave the legal advice to others. As you may know, with any court proceedings, time is not in your hands and you should be prepared for unexpected postponement, lengthy court process, etc.

How do you feel being an expert witness?

GM: It may be stressful at times, but you will slowly get used to it. Your own experience can teach you many things and you can apply lessons learned from the past. Being an expert witness is certainly challenging but at the same time, it gives me the opportunity to put the skills and experience I have gained over my career to good use by assisting in the legal process and contributing to a fair outcome. The overall experience has proven to be both exciting and rewarding!

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