The Making of an Expert Witness

What is an expert?

The Oxford English Dictionary defines an expert as follows:

expert / adj. & n. • adj. 1 (often foll. by at, in) having special skill at a task or knowledge in a subject. 2 (attrib.) involving or resulting from this (expert evidence; an expert piece of work). • n. (often foll. by at, in) a person having special knowledge or skill.

For the past 13 years of my career, I have been involved in expert work. I trained as a quantity surveyor in the early 1990s, began working as a quantity surveyor for a contractor in the UK in 1997, and became a consultant in 2006, specialising in the quantum analysis of construction claims.

I was first introduced to the concept of expert work in the construction industry when I began studying (again) in 2004 and, having been fully indoctrinated in contracting for the previous seven years, I was sceptical to say the least. Ignorantly, perhaps like most people who first hear the term, I assumed experts in their field to be the best at what they do, the crème de la crème of their chosen profession. I was wrong. I soon learned an expert is a practitioner in the true sense of the word. Put simply, an expert is someone who knows a job, role, profession or craft, inside out. An expert witness, an expert who is appointed to provide opinion on matters concerning their area of expertise, usually in a formal legal dispute situation, is an expert who can teach or explain to others how that job, role, profession or craft should be performed in the normal course of events. A good expert will accept and acknowledge they don’t know everything there is to know about their chosen field and that continual learning is essential.

This article is about the transition from subject-matter expert to expert witness and an introduction to expert-witness work based on the experience and knowledge I’ve gained over the course of my career so far.

How and when does someone become an expert witness?

A comprehensive fundamental knowledge and understanding of the core subject matter or area of expertise, gained through several years’ practical experience, is essential to becoming an expert. In the construction context, generally a minimum of 7 to 10 years is enough, although this may be different in other fields. The expert’s background can be a combination of academic and practical experience, or practical experience only; it cannot, in my view, be solely academic.

Once the knowledge and experience exist, the skill the expert needs to develop to act as a witness is how to apply that knowledge and skill in, to some extent, an abstract manner. Usually, by the time the expert is called on to act as an expert witness (or the need for an expert witness arises) the event, circumstances, or problem has already occurred and the expert is asked to provide their opinion on what happened or what should have happened in the circumstances, or under alternate or counterfactual circumstances. The task for the expert following an appraisal of the information available is to identify and perform the appropriate analysis, identify any further information that is needed and explain (usually in a report and then, if necessary, through oral evidence under cross-examination) succinctly, logically and in a manner that can be readily understood, the approach and the findings from the analysis to the range of people involved in the process. In my experience, this can include instructing solicitors, clients, judges (including adjudicators and arbitrators), other experts, mediators, facilitators and counsel. This is by far the biggest learning curve for the expert and one that has nothing or very little to do with their subject-matter expertise.

Having special skill at a task or knowledge in a subject is one thing, explaining in a legal framework why and how that skill should be applied – to an existing set of circumstances or a hypothetical scenario – and the resulting outcome is quite another; it takes years.

At the start, the subject-matter expert is at ground zero when introduced to the expert witness role for the first time. The fundamental knowledge and understanding of the core subject matter or area of expertise is set aside until the expert learns how much he or she really knows. It is during this stage that experts’ ability to apply their knowledge and skill must be properly tested. Ideally, this will be under the guidance and supervision of a variety of seasoned experts and mentors. Once this stage is complete and mastered, the fundamental knowledge and understanding of the core subject matter or area of expertise (previously set aside) comes to the fore, and the expert is ready to act as an expert witness. The expert is then tested on all fronts, both professionally and personally with each appointment and set of instructions, the breadth of which can vary significantly.

The knowledge and understanding of the range of people involved in any formal dispute process can also vary significantly. The impact of this together with the pressures driven by the various agendas at play is not to be underestimated; a thick skin is essential. Key to expert witnesses’ survival is carving their own path, based on the instructed tasks or questions, staying true to the path and maintaining focus, fulfilling their duties as expert witnesses (discussed further below) and being aware and mindful of the boundaries not to be crossed.

The day-to-day

So, what does the daily life of an expert witness entail?

Construction expert witnesses are like the pathologists of the industry. The work of the construction expert witness can be likened (metaphorically of course) to a project post-mortem. When disputes arise, the expert can often be asked to investigate and identify:

• the causes – this involves the expert establishing and understanding how the project developed either at points in time or overall;
• the effect – the consequences of the causes, usually on the project time, cost and quality; and
• any alternative or appropriate approaches – the methods or approaches that could or should have been adopted in the circumstances (or under alternate or counterfactual circumstances) to minimise or eliminate the effect of the cause in the first instance.

Like any investigation, the quality and reliability of the outcome depends on the quality of the evidence available to establish the facts. It is the expert witnesses’ duty to consider all the evidence that is either made available or, based on expertise and experience, that the expert requests because he or she knows it should exist.

The expert will (or should) spend time initially reviewing the evidence available, including the submissions of the parties. As the expert becomes more familiar with the issues, and the project, any gaps in the evidence will gradually become apparent.

Ultimately, the quality and granularity of the evidence dictates the appropriate methodology and the expert will use this to form an opinion. Unless based on the evidence available, no conclusion can be reached. In which case the expert will advise that it is not possible to form an opinion on the instructed issues.

As part of the investigation, the expert may need to consult the people involved in the project. In my experience, often key personnel have moved on to another project or another employer. If not, and the relevant or key project personnel are still available, the challenge for the expert is engaging those individuals when, depending on timing, they may have forgotten the details or have other priorities.

Once engaged, the expert then needs to listen to those individuals and distinguish the relevant information from the irrelevant, to “cut the wheat from the chaff” so to speak.

The expert will usually develop the analysis as the investigation progresses, updating it as new evidence is provided or considered. Ideally, the expert will also draft the report in parallel, although this is a matter of style; some prefer to wait until the analysis is complete before starting to draft the report.

When the report is at a suitable stage, the expert will usually provide the instructing solicitors with a draft (say 90 to 95% complete) of the report. The events that follow depend on a few variables. These include but are not necessarily limited to:

• the quality of the expert report;
• the expert’s findings, conclusions and opinion;
• the quality and experience of the legal team;
• time constraints.

The foregoing will ultimately dictate the levels of stress the expert will endure to finalise the report. Construction disputes are often high stakes and for this reason they are stressful and demanding situations. The expert needs to be tenacious in his or her opinions, without being obstinate for no valid reason, and resist being unduly influenced by the agendas of others.

In a formal dispute process the stages that follow the expert report will be determined by the procedure, the court or the tribunal. The next steps can involve responding to reports from the opposing party’s experts and participating in joint expert conferrals. I discuss the latter briefly below as part of the expert’s duties.

An expert witness’s duties

Anyone acting as an expert witness nowadays can be in no doubt that his or her overriding duty is to the court or the tribunal in which he or she has been appointed as an expert witness, and not to the appointing party.

The other procedural duties an expert witness, in formal dispute resolution proceedings, may have are detailed in the numerous rules, codes of conduct, practice statements, guidelines and protocols that exist to govern expert evidence today.

In my experience, many of the procedural duties in the various publications are predicated on the same common-sense principles, with some more prescriptive than others in terms of the extent of the details the expert witness needs to disclose. It is, therefore, important that experts are fully aware of the procedural duties they are required to fulfil so as not to fall foul of these and risk being criticised on what is essentially administrative good order.

While matters of procedure are not to be overlooked or diminished, an expert witness has a much wider duty to the profession or industry from which the specialist knowledge or skill has been gained. Expert witnesses have, through the work that they do, an implicit duty to raise the bar for standard practice across the industry or profession they represent. In construction cases, experts are invariably appointed by multi-disciplined parties with employees from the same or similar professions (eg, engineers, quantity surveyors, accountants, planners). This makes construction experts ideally placed to share knowledge with fellow non-expert professionals directly involved in the matter.

Finally, experts have a duty to be respectful to their peers notwithstanding any difference of opinion. I am pleased to say that in all but one of the joint expert conferrals I have been fortunate enough to participate in, for the purpose of producing a joint statement, the conduct of the experts has been consistently professional, respectful and conciliatory. This has resulted in the production of comprehensive joint statements that are helpful to the process and compliant with the orders issued.

Diversity

The topic of the moment; it would have been remiss of me not to mention diversity among expert witnesses in this article. In my experience, it is virtually non-existent among construction expert witnesses today.

In terms of gender diversity, I could count on one hand the female construction experts I have met during my career; including up-and-coming experts, the count would be less than ten. One of the reasons for this is most likely related to the gender imbalance in the construction industry generally. Another reason, I suspect, is the nature of the role. As a female expert, I strongly encourage other females considering expert work to test the water.

While the phrase “thankless task” is never far from my lips, I have come to learn that with expert work if you are inherently a problem-solver and methodical thinker, who is bold enough to stand in the firing line, all the reward or thanks you will ever need is in the work that you do.

In terms of cultural diversity, my experience is very similar.

In respect of diversity in age, as mentioned at the start of this article, to become an expert requires several years of practical experience. I often hear the phrase “not enough grey hair” (although, admittedly not as much these days) or “they needed someone with more gravitas,” the latter usually meaning the client, or the instructing solicitor, wants someone older. However, the view that older is better is, in my experience, changing. The main reason for this could perhaps be the knock-on effect from the age diversity in the legal teams responsible for handling the disputes.

One of the difficulties this presents for the construction industry is the availability of up-and-coming experts. To address this, in addition to the duties discussed in the preceding section, current experts need to seriously consider their duty to identify, introduce, encourage and teach, new experts to the world of the expert witness.