In my expert opinion: How to pick an expert witness

With the construction industry seeing a significant rise in litigation and conflict there is going to be an increase in demand for reliable expert witnesses called in by lawyers to either help defend or support their clients’ cases.

The biggest challenge facing those selecting an expert witness is how to ensure that the person they call upon is going to help and not hinder the case. Often the evidence the expert provides can make or break a case and therefore choosing the right person is of utmost importance.

At Tuffin Ferraby Taylor we recently undertook research which involved asking some of the UK’s top property and construction litigation lawyers what they felt were the most important traits for an expert witness to have. The results highlighted a number of key areas of importance:

Independence

According to the Civil Procedure Rules “it is the duty of an expert to help the courts on the matters within his expertise and this duty overrides any obligation to the person from whom he has received instruction.”

Courts tend not to look favourably at witnesses with a vested interest in the outcome of a hearing. It is therefore important to make sure you assess any potential conflict of interest from the start. The safest option is to get an expert from an independent firm.

Mediation

The high cost of going to court is resulting in the majority of disputes – about 80% – being resolved through negotiations and mediation. This will usually see the experts for both sides sitting around a table and arguing their cases in order to find a middle ground. Mediation is a fine art and therefore finding an expert who is experienced in mediation and has undergone specific training can work to your advantage.

Cross-examination

Whether on the stand or around a negotiating table, an expert witness’ testimonial will come under close scrutiny and the witnesses will be cross-examined on their reports. You need to be confident that your expert can withstand this process and has the nerve to stand by their findings and coherently explain the reasoning behind each factor.

Specific expertise

You need to be confident your expert has the nerve to stand by their findings

Ask yourself: “Just how much of an expert is my expert?” Most disputes occur over a very specific point and it is therefore to your advantage to find an expert who has a specialist understanding of the issues involved. If, for example, dealing with a building defect on a shopping centre, look for someone who not only has surveying experience in working with defects with the same building material, but who also has practical experience in the retail market so that they can show an understanding of the building in its correct context.

The fact is that the greater the knowledge of your witness, the stronger their testimony will be. The opposing party will more than likely have its own expert, so it is important that your witness can provide a watertight argument backed up by an authority on the subject.

Reputation

As well as experience and expertise, the reputation of your witness can make a huge difference to the testimony process. If they are respected by their peers then their statement will intuitively hold more credence.

Many law firms tend to have a trusted list of experts who they call upon and rely on word of mouth to grow that list and plug gaps in expertise when they arise. Don’t be afraid to do some detailed research on a witness, look at previous cases they have been involved in and find out what their peers and competitors think of them.

Building surveyors vs quantity surveyors

Make sure you choose the right surveyor for the right occasion.

A building surveyor generally has one foot in construction and one in property so is in a position to provide valuable expertise on issues concerning pathology, dilapidations law, service charges, due diligence and other contractual disputes involving practical completion and quality.

On other contractual disputes and quantum claims surrounding cost and commercial elements, a QS may provide your case with a stronger argument.