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EXPERT TESTIMONY

As construction practices evolve, expert testimony is becoming increasingly necessary in "construction defect" litigation. Structural engineers called on to act as an expert witness in construction litigation should prepare carefully to avoid disqualification or rejection of their opinions and testimony.

Stick To Your Area of Expertise

As an expert witness in litigation, it is crucial to stay within your area of expertise. In depositions or trials, an expert may become too comfortable and stray into areas where his or her qualifications may be lacking. Just because you have some familiarity in another area, does not mean that you are an expert. Stepping beyond your strengths can lead to being discredited in a manner that can hurt strong opinions and testimony in your area of speciality.

Many times attorneys get caught up in the various tasks for which they are responsible in litigation, and communication with individual experts can suffer. It is important that you understand what other experts will testify and their areas of specialty. Discussions with the attorney with whom you are working will help you understand the parameters of your role and when you should defer to others. Also, make sure that your opinions do not overlap into another expert’s area, even if you are qualified in that area. Conflicting opinions from experts on the same team must be avoided.

Maintain Good Credentials

Construction litigation is often a battle of competing experts. As an architect or engineer, additional credentials from top engineering organizations give experts increased credibility in the eyes of a jury. When looking to enhance your credentials, however, prioritize organizations that require testing, rather than those that simply require the payment of dues to join. In previous depositions, we have seen experts discredited by opposing counsel using such credentials.

To avoid an embarrassing situation like this, remember that it is okay to omit experience. Overselling can make it easy for the opposing counsel or opposing expert to poke holes in experience, and consequently, your credibility. While it is important to be a member of the trade associations within your profession, it is more important to be active in those trade associations. An expert who is an officer or committee participant has a leg up on another expert who is simply a member of the association.

Jurors are very impressed by anyone who has spoken at seminars or published articles. Writing and having something published is considered by jurors to be a difficult task. In addition to recognition and credibility, writing and speaking requires research and helps further develop your knowledge.

Get Qualified as an Expert

Discuss qualifications with your attorney. Expert standards vary from state to state, as well as in state and federal courts. Various state courts, are adopting their own standards. For example, prior court qualification as an expert may be very persuasive to some judges.

Concentrate on Facts and Examples

Jurors understand opinions and testimony better when they can see problems or standards. On-site field documentation, such as photographs, measurements, and physical evidence, reinforces expert opinions. In addition to demonstrative exhibits, specific references to standards or codes impress jurors and are much more difficult to discredit. In some cases, opinions need an accompanying reference to a expert authority. Building codes, standards, and academic treatises need to be used and referenced often.

If engineering opinions are based on calculations, building code research, or verifiable standards, accuracy is critical. Serious damage can be done to an expert’s credibility if mistakes are identified by opposing counsel in front of a jury. When an expert’s file is produced during deliberation, keep in mind that opposing experts will likely dissect the technical content presented. A review of calculations and written opinions should be performed before any file is produced.

Conclusion:

The key to providing good expert testimony is communication with your attorney to ensure that you properly understand your role. If you stick to your area of expertise and employ these suggestions, you should be able to qualify as an expert witness and provide strong opinions and testimony for your client.

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