What is an Expert Witness?
An Expert Witness is a practitioner of skill and
competence in a particular trade or profession. An Expert Witness
must be observant, logical and analytical, and must be able to clearly
identify and seek out any problems. In the Expert Witness report,
the facts, analysis, conclusions and opinions should be clearly
expressed, so that they can be understood by non-technical persons.
What an Expert Witness can offer
In the context of construction litigation an Expert
Witness can provide:
- A definition of technical problems
- Ordering of the facts
- Explanation of possible consequences
- Identification of relationships to other matters
- Clear opinion based on reasons.
The Expert should be able to explain the significance
of a fault. The most obvious significance is cost; other important
aspects are safety and reliability. A fault in one part of a building’s
construction may have an impact on other areas. The Expert should
highlight these and advise if opinion should be sought from other
The Expert Witness and the Solicitor
Before an Expert is appointed it is likely that
the work of the Solicitor has already started. The solicitor should
have arrived at some preliminary conclusions about the points of
law that require to be proved and upon which an Expert opinion is
sought. The Solicitor should explain to the Expert exactly what
points of law are being contemplated and what they mean. So that
the Expert can develop a full picture of all relevant matters, all
related correspondence, specifications, instructions to the contractor
and drawings should be passed to the Expert.
The Work of the Expert Witness
On your behalf, the Expert Witness should:
- Define and catalogue defects, faults and failures
- Establish the facts
- Explain how any defects and failures arose
- Express opinions related to defects and analysis
The basis of an Expert Witness report is to catalogue
the defects, faults and failures. In expressing an opinion the Expert
must be able to justify it on the basis of his investigations, facts
Understanding the Expert’s Report
The Expert’s report will contain standard sections
covering a summary of instructions received, the Expert’s qualifications
and experience, reference material used, details of site visits
and interviews. These sections should establish the context of the
report, the credentials of the Expert and the history of his work
on the case.
The schedule of defects will outline the defects
considered, how they were discovered and why they are stated to
be defects. The schedule should be based upon substantiated facts
and the date that a defect became apparent should be noted for the
purposes of prescription. Each defect should be related to standards
acceptable at the time of design or construction. The opinions stated
by the Expert should be clear and related to the facts.
Shortening the Legal Proceedings
It is possible for an Expert to help shorten the
legal proceedings in a case by:
- Having regular meetings to agree the facts
- Negotiating to resolve technical matters
The subjects of dispute can be made up of many
small details. To use Court time to establish these details is time
consuming and expensive. Regular meetings can potentially offer
agreement on technical facts and, if not actually produce a resolution,
may reduce the volume of material to be introduced as proof.
Technical breaches in a contract are often ones
that both parties are willing to resolve. Where remedial works need
to be carried out the Expert should be able to define what these
works are and develop a scheme to implement them.
The Role of the Expert Witness in Court
The role of the Expert is to guide the Court in
technical matters from the information made available by his Client
and his own researches. An Expert is obliged to research and, while
not arriving at a judgement, arrive at some conclusion.
If you require the services of an Expert Witness,
please call AFA and we will be happy to provide
you with professional and confidential advice.