Appearing in the June 2014 edition of Res Gestae – the monthly publication of the Lee County Bar Association
Within the design and construction industry, we use the abbreviation A/E/C frequently to denote architecture/ engineering/construction professionals. I propose adding an /S for science. The science can often answer questions as to the what and the why, and how the defect relates to a building’s performance or failure. How do you as the construction litigator select the right A/E/C/S expert for your case?
Over the course of many years and more than 200 cases, I’ve found the most critical factors for selecting your expert are, in order of importance: ability to communicate, the “right fit” with the attorney and case and, finally, expertise.
Frankly, credentials are fairly easy to come by compared to communication skills and the right fit for the case.
Communication ability is first and foremost. Your best witness can communicate complex technical concepts in a comprehensible manner. The use of effective demonstrative aids such as material samples, photos, models and drawings will help. The witness must be clear, concise and non-wavering, but not come off as stubborn to the other side of the case. This is a difficult balance to strike. Your witness must have an eventempered personality or risk being thrown off by a skilled opposing counsel.
A bit of passion in a witness’ opinions will help engage the audience, as long as it’s not over the top. The use of hand gestures and changes in body position are essential to keeping the audience’s attention, and eye contact is critical to getting the point across. However, my experience tells me there is no room for a “salesman” in the courtroom; all testimony must be genuine! If a witness comes off as too polished, there is a danger the witness will appear to have been coached, or is just plain un-relatable to the audience.
The second factor to consider is how the expert fits in with the overall case. If there are limitations of time, information or money, the expert must be comfortable with those limitations before accepting the assignment. How flexible will your expert need to be? How will he or she adapt to the needs of the case? Can the expert effectively control for time, costs or unknowns?
Finally, how do you evaluate expertise? Frankly, credentials are fairly easy to come by compared to communication skills and the right fit for the case. Be very careful to examine any and all potential experts personally and with direct communications; do not go by credentials alone.
A few points to look for in each type of A/E/C/S Expert:
• Architectural – Seek out a seasoned and licensed professional with a diverse base of experience, preferably one who is still active in architectural project design and construction administration.
• Engineering – An experienced Professional Engineer with expertise in the particular discipline in question (civil, structural, mechanical, etc.) will be most advantageous to your case.
• Construction – Residential, building or general contractors can address issues of project constructability, scheduling, estimating, jobsite safety and practices.
• Building Science – Building science experts can help in cases involving product and system failure requiring analysis, like thermal and moisture performance or material science issues, as examples.
Some final questions to ask: Is the expert truly necessary, or are consulting services needed? Does the client accept the need for the expert, and understand his or her importance? Will the client or insurer pay the expert’s fees? What are the possible findings, and could they work against your client?
When it comes to the case and trial proceedings, you as the attorney are the “general” on the battlefield and call the shots! The selection of the expert witness is a critical responsibility. Carefully consider all of your options in the pursuit of the best possible expert witness for your client. RG