As expert witnesses, industry experts play key roles in litigation cases

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Complex litigation requires an organized legal team, strategy, flexibility — and increasingly, the powerful testimony of expert witnesses.

As the legal environment adapts to changing times, precedents set decades or even a few years ago may no longer apply. Advancements in technology, information, and specificity mean disputes are becoming more detail oriented. As a result, the need for expert witnesses has become not just a mere part of most legal strategies, but an outright necessity around which many cases – including those related to the building industry — are shaped.

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“It’s expanded tremendously in the past 20 years,” said Dick Alexander, an attorney for Stoel Rives LLP who specializes in construction law.  “I’ll never have less than one and usually have more, depending on the case.”

Complex cases with layers of interrelated issues, for example, usually require multiple expert witnesses, each versed in a different area.

“It’s rarely a single issue,” Alexander said. “It could include scheduling, architectural issues, electrical, geological, structural engineering, and so on.”

Typically, an unwritten, common-sense, set of standards applies to finding an expert that will be as near unimpeachable on the stand as possible.  Among the values that lawyers look for in their expert witnesses are expertise in the discipline in which the expert works, a high level of experience, education and certification, reputation in the professional community, and the ability to communicate.

George Goodman, a partner with Cummins, Goodman, and Denley & Vickers stresses the latter skill as being extremely important in determining an expert witness’s viability.

“I’ll pay more for [an expert witness] that is not just knowledgeable, but is a communicator,” Goodman said. “If he’s reasonable in his answers, persuasive, and a good communicator, that’s who I want on the stand. Many experts don’t have that quality. It’s a rare talent.”

When it comes to establishing the expertise of a witness in a specific area or field, education and certification can be used to support the claim. But Goodman is quick to point out that expertise is often more than a mere matter of certification. Depending on the information that needs to be verified, the best testimony may come from a worker who spends his days out in the field rather than behind a desk.

“It’s the lawyer’s job to distinguish between certification and expertise,” Goodman said.

“Give me the guy who has experience on the ground, the guy with muddy boots.  That’s the guy who’s going to reason with the jury on a level they’ll comprehend every time,” he added.

Lawyers say they also look for expert witnesses who are confident, but not overly so. Expert witnesses need to work with a lawyer rather than step into a role of advocacy. Stepping over that line can often create a sense that an expert witness is overconfident, a weakness that the opposition may then use to their advantage to discredit the expert’s testimony.

Because the task of finding and preparing expert witnesses is so detailed, the process often requires an investment of additional resources, staff, and time. And that significant investment can play a significant role in determining how a legal case spins out.

“I’ve seen cases where both sides have so much invested in preparing for trial that negotiating a settlement becomes less practical,” Alexander said. “It makes more sense to go for the win.”

Just as some attorneys retire from practice and take up an “Of Counsel” role as advisers in legal cases, some professionals in the building industry find lucrative post-career work as expert witnesses.

But establishing oneself as a “professional” expert witness comes with an added burden. The role comes with the expectation that the witness will be spot-on at all times, the best of the best in their field.

“The lawyer, the law firm hires this witness and we control him,” Goodman said. “There’s no room for surprises when they take the stand. Attorney and witness are fully versed, fully rehearsed, and ready for what the opposition is going to throw at you to try to discredit the witness.”