Expert witnesses are central to the resolution of most major construction disputes. In broad terms, they fall into three camps – forensic scheduling experts (CPM analysts), damages & accounting experts, and technical subject-matter experts, by far the most diverse category. Technical expertise can range from the proper application of roof flashing to the effective methods for cleaning a steam generator – everything that possibly could go wrong, and in that particular case, has gone seriously wrong on a complex construction project.
As an arbitrator, I get to see lots of construction experts, excellent ones, weak ones and everything in between. To be effective, the expert must, first and foremost, maintain his or her credibility. If credibility is lost, nothing else much matters. The target audience, the arbitrators (either one or a panel of three), is significantly discounting everything said.
So, what are the most common problems that cause a substantial loss of credibility or loss of effectiveness for an expert? Here are the seven issues that capture the most serious sins seen over the course of many construction arbitrations.
- “Errors” on the expert’s resume. This is particularly deadly because it is completely within the expert’s control and so easily avoided. Most common is just stretching the truth somewhat – like saying you graduated from a particular school or program when actually you attended and finished most of the coursework, but never formally graduated. Opposing counsel can readily fact-check the resume and the “oversight” will come out at the worst possible time – at the beginning of cross-examination. There is no acceptable comeback from this. If the expert can misrepresent their qualifications, they cannot be relied on to be forthright about anything. Everything on a resume needs to be scrupulously accurate, no exceptions.
- Dodging questions, especially from the arbitrators. Every case has its weak points, and bringing those out is at 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 it will be noticed by the arbitrators, 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 never makes it helpful to the arbitrators). But when a straightforward question is asked by an arbitrator, a straightforward answer is both expected and imperative. Dodgy answers to arbitrator questions lead directly to a conclusion that no good answer exists, the witness is unreliable, or both.
- Doubling down on a “can’t-win” point instead of conceding graciously and moving on. 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 approach is to fight always, and never to concede any error, the cross quickly becomes argumentative, and the adverse effect of the error on credibility gets multiplied many times over. The best experts quickly recognize they are in a trap, concede the point tactfully and calmly, and leave the questioner with no alternative but to move on to something else, minimizing the overall damage.
- Not being prepared. Cross examination may well get into the details of any aspect 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 important opinions. But an expert who seems like he has not reviewed his or her report in detail recently is asking to be disregarded on the important points as well.
- Not being familiar with the pertinent facts (especially for damages experts). By their nature, damages experts (and some technical experts) have to assume facts about the merits that affect the monetary consequences to the claiming party. Preceding fact witnesses on their side will have addressed those facts or perhaps failed to address them. All too often the damages expert premises a significant component of damages on a fact that differs from (or significantly adds to) what their side’s witnesses have already testified to. The question this immediately prompts in the arbitrators’ minds is: “How much else is the expert saying that is not premised on the established facts?”
- Poor pacing – talking too fast, talking too slowly, relying on jargon. Understanding the sophistication of the arbitrators 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 most effectively communicate with the arbitrators is a key attribute of a good expert. Too slow and basic risks reduced attention; too fast and jargon-filled risks losing the arbitrator entirely. Besides some advance research on the panel, arbitrator questions provide 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 to a middle school level explanation.
- 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 you what to think about an issue. They are instead teachers speaking with intelligent students, explaining the key premises of their opinions and letting the arbitrators make their own logical jumps as to why the conclusions makes sense. 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.
