Seven Deadly Sins of Construction Expert Witnesses

By Andrew D. Ness

Experts Are Key in Many Construction Disputes

Expert Credibility—Once Lost, Nothing Else Matters

As an arbitrator, I see many types of construction experts: excellent ones, weak ones and everything in between. To be effective, experts must, first and foremost, maintain credibility. If credibility is lost, nothing else matters.  Without credibility, the arbitrators (either one or a panel of three), will discount everything the expert says.

Seven Deadly “Sins” Affecting Expert Credibility

1. Resume´ Errors

This is particularly deadly because it is completely within the expert’s control and  easily avoided. Most common is just stretching the truth –misrepresenting graduation from a particular school or program when actually the expert only attended and finished most of the coursework, but never formally graduated. Opposing counsel can easily check the resume and will note the “oversight” at the worst possible time – at the beginning of cross-examination. There is no acceptable comeback from this. If the expert misrepresents their qualifications, they cannot be relied on to be forthright about anything. Everything on a resume should be scrupulously accurate, no exceptions.

2. Dodging questions, especially from the arbitrators

Every case has its weak points, and bringing those out is the heart of cross examination. The temptation to dodge a hard question – by giving a non-answer answer or trying to change the subject – is strong. But the arbitrators will notice, especially if the pattern continues (as it will with a persistent questioner). It may be forgiven when it involves a poorly worded question from opposing counsel, as some degree of gamesmanship in cross examination is commonplace (although that is not helpful to the arbitrators). But when an arbitrator asks a straightforward question, a straightforward answer is expected and imperative. Dodgy answers to arbitrator questions lead to the conclusion that no good answer exists, the witness is unreliable, or both.

3. Doubling down on a “can’t-win” point instead of conceding graciously

Every expert gets trapped occasionally in an error or overstatement in their report or testimony. This need not be fatal if handled appropriately. If the expert’s approach is always to fight and never to concede any error, the adverse effect on credibility is multiplied many times over. The best experts quickly recognize they are in a trap and concede the point tactfully and calmly. This leaves the questioner with no alternative but to move on to something else, minimizing the overall damage.

4. Not being prepared.

Cross examinations may cover all aspects of the expert’s analysis, so the expert needs to be fully up to speed on every bit of it. That said, slips as to minor points and understandable forgetfulness happen to everyone and usually cause little or no damage to the expert’s opinions. But experts who appear unfamiliar with the details of their report are asking to be disregarded on the important points as well.

5. Not being familiar with the pertinent facts (especially for damages experts)

 By their nature, damages experts (and some technical experts) must assume facts about the merits that affect the monetary consequences to the claiming party. Preceding fact witnesses on their side should have addressed those facts (or perhaps failed to address them). All too often the damages expert premises a significant component of the damages on a fact that differs from (or significantly adds to) what their side’s witnesses have already testified. This immediately prompts arbitrators to ask: “What else is this expert saying that is not premised on the established facts?”

6. Poor pacing – talking too fast, talking too slowly, relying on jargon.

Understanding the arbitrators’ sophistication on the subject at hand is a central element of effective expert testimony. Many construction arbitrators have substantial experience on scheduling and damages issues, for example, but some do not. Presenting the expert’s analysis at the right level to communicate effectively with the arbitrators is a key attribute of a good expert. Testimony presented too slowly and too basically risks arbitrators’ reduced attention. Testimony presented too fast and filled with jargon risks losing the arbitrators entirely. In addition to doing some advance research about the panel, experts should consider arbitrators’ questions as providing the most important clues as to proper pace. Good experts quickly “read the room” and adjust appropriately, while others miss the clues or (just as bad) overreact, such as by jumping from a grad school level presentation to a middle school level explanation.

7. Talking down to the arbitrator.

As the term “mansplaining” neatly captures for one gender, nobody enjoys being talked down to. This includes arbitrators of both genders. The best experts do not come across as lecturers telling arbitrators what to think about an issue. Rather, they are teachers speaking with intelligent students, explaining the key premises of their opinions and letting the arbitrators reach the desired conclusion themselves. Conclusions reached this way are received and retained considerably better than ones that are force-fed, which can only benefit that side of the case.

Takeaways

• Expert testimony is key in many construction disputes.
• If experts lose credibility with the arbitrators, nothing else matters.
• Experts should avoid the “seven deadly sins” to make their testimony credible and effective.