What is an Expert Witness?
An Expert Witness is a practitioner of skill and competence in a particular trade or profession. An Expert Witness must be observant, logical and analytical, and must be able to clearly identify and seek out any problems. In the Expert Witness report, the facts, analysis, conclusions and opinions should be clearly expressed, so that they can be understood by non-technical persons.
What an Expert Witness can offer
In the context of construction litigation an Expert Witness can provide:
The Expert should be able to explain the significance of a fault. The most obvious significance is cost;
other important aspects are safety and reliability. A fault in one part of a buildingís construction may have an impact on other areas. The Expert should highlight these and advise if opinion should be sought from other areas.
- A definition of technical problems
- Ordering of the facts
- Explanation of possible consequences
- Identification of relationships to other matters
- Clear opinion based on reasons.
The Expert Witness and the Solicitor
Before an Expert is appointed it is likely that the work of the Solicitor has already started. The solicitor should have arrived at some preliminary conclusions about the points of law that require to be proved and upon which an Expert opinion is sought. The Solicitor should explain to the Expert exactly what points of law are being contemplated and what they mean. So that the Expert can develop a full picture of all relevant matters, all related correspondence, specifications, instructions to the contractor and drawings should be passed to the Expert.
The Work of the Expert Witness
When carrying out their work, an Expert should be gathering information and engaging in the processes of:
A catalogue of defects, faults and failures forms the basis for the Expertís report. It is upon these matters that the rest of the report will flow. The definition of the defects is normally the result of investigation and enquiry.
- Defining and cataloguing defects, faults and failures
- Establishing the facts
- Explaining how defects and failures arose and relating them to:
- Functional failures
- Failures to comply with statutory instruments
- Established standards (British Standards etc.)
- Established codes of practice
- Quality assurance failures
- Expressing opinions related to defects and analysis
The facts relating to defects need to be established, as far as is possible, from research of papers and enquiry. Written material that can be produced in evidence is preferable to oral statements.
An explanation as to how defects, failures and faults have arisen is important as this will form the basis for arriving at an opinion about responsibilities. When explaining why something is a defect and what should have been expected, it is always important to relate the subject back to published material. Such material would include regulations and statutory instruments, British Standards, codes of practice and even Quality Assurance procedures of the contractor.
It is only through analysis that the Expert can express a valid opinion which will stand up to rigorous testing. In expressing an opinion the Expert must be able to justify it on the basis of his investigations, facts and analysis.
Understanding the Expertís Report
The Expertís report will contain standard sections covering a summary of instructions received, the Expertís qualifications and experience, reference material used, details of site visits and interviews. These sections should establish the context of the report, the credentials of the Expert and the history of his work on the case.
The schedule of defects will outline the defects considered, how they were discovered and why they are stated to be defects. The schedule should be based upon substantiated facts and the date that a defect became apparent should be noted for the purposes of prescription. Each defect should be related to standards acceptable at the time of design or construction. The opinions stated by the Expert should be clear and related to the facts.
Shortening the Legal Proceedings
It is possible for an Expert to help shorten the legal proceedings in a case by:
The subjects of dispute can be made up of many small details. To use Court time to establish these details is time consuming and expensive. Regular meetings can potentially offer agreement on technical facts and, if not actually produce a resolution, may reduce the volume of material to be introduced in a proof.
- Having regular meetings to agree the facts
- Negotiating to resolve technical matters
Technical breaches in a contract are often ones that both parties are willing to resolve. Where remedial works need to be carried out the Expert should be able to define what these works are and develop a scheme to implement them.
The Role of the Expert Witness in Court
The role of the Expert is to guide the Court in technical matters from the information made available by his Client and his own researches. An Expert is obliged to research and, while not arriving at a judgement, arrive at some conclusion. The Expert is not seeking to justify a clientís actions. Actions relating to technical decisions can be analysed and their context defined but the Expert can not explicitly justify them.