Construction Defect Litigation: The Critical Role of the Expert Witness

[fa icon="calendar"] Mar 18, 2016 2:09:02 PM / by Mark McGivern, CSI, Aff. M. ASCE

To the Reader

Mark McGivern

The culture and passion surrounding construction defect litigation fills my life with as much intrigue as Frank Underwood's in House of Cards. While I hardly condone Frank's often ill-advised behavior, I understand how hard it is to predict cause and effect in the context of multidimensional situations.

The construction and forensic experts in our firm assemble facts and opinions to support construction-related claims--from the perspectives of both plaintiff and defendant. Despite the books, seminars, webinars and courses galore on hiring experts, we find that attorneys and insurance professionals often need help recruiting, selecting, budgeting, and managing these mission-critical resources.  As someone who has presented numerous times at lectures and seminars on this very topic, I thought it would be useful to share some hopefully objective thoughts on this dynamic topic.

Construction defects and forensic investigation can be very complex, and each case takes on it’s own intellectual challenges which has sustained my passion for this work as an investigator and expert for over two decades and counting. And I am still learning. It is complex problem solving with many of the elements of a good novel.

In this series I will share my own experience and insights, exploring the process of the retention, investigation, and management of the expert. Within the series are specific topics that present ways to think about the goals, expectations and process that will enhance the working relationship between the expert and client. Of course the reader will bring his or her own experience to mind when reading, and may have a different perspective. But I hope this series will prompt the reader to respond with counter arguments, commentary, or just plain disagree.

Reflections on Being an Expert

My first experience as a construction expert witness in the early 1990’s involved a small case in Massachusetts.  Direct and cross-examination lasted less than an hour. My testimony focused on a small dollar case involving opinions as to the cause of a porch roof collapse and whether it was the result of a pre-existing condition, or the result of the weight of ice and snow. I was terrified when I raised my hand to be sworn. But due to good preparation, and a despite my naiveté in testifying, the testimony went well. It also helped that my testimony was on only one issue, and was simple to explain and support. That first exposure to “expert testimony” demonstrated to me that even a great lawyer is only as good as the expert. Thankfully, the attorney prepared me well. Decades later I look back and see how differently and more effectively I could have presented my testimony and support.

Since that first case long ago I have been involved in hundreds of other cases as an expert in deposition, mediation, arbitration, and trial testimony in Federal and state courts across the US. And I still get nervous before every proceeding. And I think that’s a good thing. 

Your Expert Makes or Breaks a Construction Defect Case

Construction Defect litigation is considered by many to be among the most complex type of litigation, especially for the experts involved in providing opinions. Lawyers understand the legal aspects of the defense or prosecution of a case, and how to develop arguments to advocate for their client. But whereas lawyers are advocates, litigation experts are, by definition, independent, and retained to assist the trier of fact to understand the myriad technical issues at hand. This distinction is paramount to the expert and lawyers.

In my experience the skilled attorneys look to the expert to help counsel understand and define the issues concerning the defects. The attorney typically relies upon the expert to develop and implement an investigation in an efficient but thorough process that will withstand the rigors of testimony.

Defining the Expert's Role

Attorneys and their clients experienced in CD cases understand the complexities of this type of litigation, and the important role experts play in resolving the case. The expert’s investigation and ultimate opinions on a wide variety of technical issues related to design, construction, codes, standards, practices, and contracts (contractual or legal arguments aside) can significantly impact the outcome of a case.  Experts who specialize in forensic investigation and litigation as part of their professional practice develop specific knowledge and skills to develop objective, defensible opinions that may be used in resolution of a case at mediation, arbitration or trial.

Regardless of which side retains the expert, the methods and standards of the expert's investigation should not differ in its objectivity, basis, and use of sound data and research. Valid opinions, based on the facts, supported by qualified and quantified data, accepted industry literature and methods, with analysis to support expert opinions will garner the most credibility with the client, judge or jury, and often the opposing side. The experts’ knowledge and understanding of the standards for rendering expert opinions (Daubert, Robinson, Frye) is essential.

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: Construction Defect Litigation