Whether you’re involved in a domestic construction dispute as a building professional or an owner, it’s often advantageous to call an expert witness. An expert witness in a construction dispute’s role is to provide objective, qualified, and documented evidence related to the dispute facts. Engaging an expert witness is generally a complicated and costly exercise. Also, the expert’s role as an impartial observer, not as an advocate for the party, giving the instruction, is often misunderstood. Parties to a dispute may feel nervous when their chosen expert appears to be “not on their side,” or the other party’s expert is an “adversary” in the impugned proceeding.
Thus, an understanding of expert witnesses’ role is useful – their obligations to a court or tribunal, and how they can determine construction litigation.
Who Is an Expert Witness?
An expert witness is a highly qualified professional with specialized technical knowledge in a particular field or sector, and the skills to provide an opinion, both written and oral. These expert views may be used as evidence in negotiations, dispute resolution processes, or proceedings before a court or tribunal.
When and Why Is an Expert Used?
The expert’s role is to assist the parties in negotiating a settlement or, if the matter is before a court or tribunal, to guide the decision-maker towards a reasonable determination. A dispute relating to a residential building does not generally involve interpreting a contractual clause, which would be an issue for lawyers to argue before a court or tribunal.
On the other hand, a residential construction dispute generally involves claims relating to incomplete and defective construction work, highly technical and industry-specific. The subject of the debate can be a single-family house or a multi-storey residential complex. A layperson is certainly not equipped with the necessary expertise to provide technical proof that could potentially be considered opinion or gossip in a legal proceeding. Similarly, a lawyer is not skilled in assessing the cost of rectifying a building.
Retaining an Expert Witness
The selection of an expert witness is generally carried out by the lawyer representing a litigant, who will identify a professional with the necessary expertise for the case in question and the ability to provide written and oral evidence if required. Written instructions should be provided to the expert, including an overview of the case, the issues in dispute, the issues to be addressed and additional information to prepare the report, such as construction contracts, plans and building material specification invoices.
A court hears most unresolved domestic construction disputes with specific rules and codes of conduct regarding the use of an expert witness and the format required for expert reports. This procedure is generally intended to ensure consistency and uniformity. A copy of the expert evidence instructions and the court’s reporting requirements should always be attached to the expert’s instructions. It may also be necessary to hire an additional expert with specialized knowledge, such as a structural engineer, to provide a supplementary report for specific issues such as an allegedly defective retaining wall.
A quantity surveyor may be engaged to assess the cost of remedial work for more complex issues. It may not be necessary to hire an expert for relatively straightforward cases, as it may be sufficient to obtain quotes from building professionals and tradespeople..
An expert witness can be hired to provide a qualified and unbiased opinion to determine an issue in dispute. Selecting an expert with the qualifications, knowledge, and experience to provide an objective statement is essential in many construction disputes. When choosing an expert, it is also crucial to keep in mind that the expert is not the instructing party’s lawyer. Contact Kane Construction Management Inc. if you or someone you know would like more information or if you need help or advice.