The So-Called Experts

By Timothy R. Hughes

Understanding the role and sources of potential experts is an important component to understanding construction litigation.

Construction litigation almost inevitably requires the use of expert witnesses. Much of the litigation process is devoted to performing factual discovery to give your expert the requirement structure to make a solid presentation. At the same time, one must try and discredit the other sides' experts. Understanding the role and sources of potential experts is an important component to understanding construction litigation.

1. What Are Experts Used For? Construction cases involve a tremendous amount of factual and technical complexity. When factual matters involved in a trial are beyond lay comprehension, expert testimony is admissible. The threshold for introduction of expert testimony varies depending on the forum. In federal courts, for example, a United States Supreme Court decision holds that the judge has to act as a gatekeeper in evaluating such evidence. If the evidence is not accepted in the scientific community, the court may refuse to introduce the expert testimony. Different state courts apply different threshold standards for admissibility.

2. Who Are These So-Called Experts? Expert testimony in construction cases takes many forms. For example, in professional liability cases against design professionals, expert testimony is required to establish the applicable standard of care and whether it was breached. Other examples of possible expert witnesses include experts on constructability, delay and schedule impact experts, and experts in different contracting and subcontracting disciplines. Experts are widely available. Many experts in litigation are hired guns who support even weak positions in litigation. Even a hired gun expert may be enough to send a weak case to a jury that otherwise should be dismissed at an earlier stage.

3. The Cottage Industry A cottage industry has developed around the construction trades for expert witnesses. The entire purpose of some businesses is to analyze construction delays and document a party's position in litigation. These experts in particular tend to be extremely expensive and require a great deal of documentation. Many delay experts must review all of the documents on the project and develop their own actual as-built schedules. The business of mold litigation is an example of a burgeoning cottage industry. Ten years ago, it was difficult to find indoor air quality experts with extensive experience in mold remediation. Since then, an entire testing and remediation industry, with expert witness overtones, has developed from whole cloth.

4. Who Decides Which Expert Wins? Ultimately, the trier of fact decides which expert is more credible. In a bench trial, the trier of fact would be a judge. In a jury trial, the trier of fact would be the jury. This factor emphasizes the unpredictability of litigation in general and construction litigation in particular. You may have retained the preeminent expert in the field on a particular issue and that expert may agree with your position. You can nevertheless lose because the trier of fact finds the opposing party's expert more credible. Juries can and do take an expert's background and qualifications into account when weighing an expert's opinion. These are also proper areas for cross-examination if you are faced with a poorly qualified expert. In terms of presentation of facts and opinions, preparation and organization play a role in an expert's jury appeal. Ultimately, an expert's jury appeal strays into the same gray area as the credibility of lay witnesses. A juror may simply not like an expert for some undefined reason. The likeability and clarity of an expert's presentation is extremely important to consider when you are selecting, or cross-examining, an expert witness.

Conclusion Expert witnesses are a staple in modern construction litigation. Due to the factual and technical complexity of construction litigation cases, experts are involved in some capacity in virtually every case. Experts have a wide range of levels of qualifications and presentation to a finder of fact, but ultimately it is still the lay jury or judge that decides which expert to believe.

Timothy R. Hughes, Esq., is the principal of the Northern Virginia law firm of Hughes & Associates, P.L.L.C. He specializes in construction litigation, corporate and business related representation, and complex civil litigation. He may be reached at tim@hughesnassociates.com, or by phone at (703) 671-8200.