November 13, 2019
Disputes typically require an expert opinion, where both the accuracy of analysis and the veracity of the expert are essential to a successful outcome.
With a large pool of qualified experts available, how do litigators hone in on the right expert for their matter? We took this query to the source and asked our construction experts to share questions litigators typically ask them when they are being evaluated as an expert for a matter. While not exhaustive, consider a few of the following highlights…
How well does the expert know the issues in the dispute?
Consulting a detailed resume of work experience, testimony experience, publications, and degrees or certifications is essential. Because some experts overreach their expertise and experience, they can lose credibility both for what they know and what they don’t know.
Does their reputation precede them?
Most experts are found through word of mouth, either asking someone you know or working with someone who comes recommend by a trusted colleague. But like all considerations, reputation must be weighed against other factors. The expert may have a great reputation as a cost expert but will that transfer to a schedule delay matter? Probably in some instances but certainly not in all. Also, if you have used this expert in the past, will he or she be perceived as being partial to you or your client?
Can the expert explain what they know?
The expert you select must be able to clearly explain his or her work, why they chose the approach they did, and the experience they had to cause them to reach the conclusion they did. Clarity is the key to the expert’s written and verbal communication. Their ability to review the facts, perform a comprehensive analysis and the distill the complex into a concise and easily understood presentation of what happened and why is essential.
Are they calm, cool, and collected?
The role of an expert can be challenging. While one can prepare for direct examination so that the analysis and opinions are delivered in a clear and understandable manner, cross examination is a test of the expert. Opposing counsel is always well prepared, so any inconsistencies, weaknesses, or contradictions will be identified. The expert must be able to field questions and explain his or her position, know when a short answer is best, when a long answer is appropriate, and when to back away from an indefensible position. These skills need to be performed with grace, poise, professionalism, and a clear respect for Judge, jury, and counsel.
Can the expert customize their approach to the forum?
The forum for dispute resolution impacts the character of the testimony and therefore the expert. If your expert will appear before an experienced group of construction arbitrators, it is reasonable to assume that your panel knows the basics of the technical material, at least in summary. An expert in this situation could present a complex argument with nuances and detail. Alternatively, the communication skills necessary to simplify and explain the facts to a jury require a different skill set and careful planning of the expert’s testimony.
Are they honest and independent?
Clients and litigators always want an expert who tells them the truth, preferably during the analysis phase of the work. Experts want to assist their clients by presenting their independent and unbiased opinions, based on the facts as presented, with a sound analysis. These presentations often include unpleasant facts and/or opinions. If your expert isn’t sharing the “good, bad, and the ugly” with you, it should raise a flag.
When should I engage an expert?
A final point that many of our experts mentioned is that waiting too long in the dispute process to hire an expert is generally a mistake. An expert can help you frame your approach when hired early in the development of the matter. While waiting can provide the perception of cost savings, a compressed timeline in complicated construction litigation creates the situation where costs increase and the value-add of the consulting expert is diminished.