Who is an Expert Witness?
An expert witness is a person with knowledge, skill, experience, or education that makes them qualified to give an opinion in a case based on their field of expertise. Negotiations, dispute resolution processes, and court proceedings are complex endeavours that require an extensive understanding of the law as well as deep technical knowledge in a particular area or industry. Members of the court often have no option but to rely heavily on the testimony of the experts to help them make a fair decision for any given dispute. Therefore, expert witnesses with specialised knowledge can be called upon to give evidence and provide technical information presented in writing or verbally that may make or break the case.
Criteria for an Expert Witness
The expert witness must meet some criteria though. An expert witness must be qualified to testify in court about a particular topic or area. They must have experience within that field and must be able to articulate their expertise effectively. Given their critical role, it’s crucial that they provide both credible technical knowledge and unbiased evidence so as not to sway the outcome of a case.
In short, an expert’s opinion can be used as evidence for your claims, but only if the following conditions are met:
- It is objective (meaning that the person providing their testimony must not have any personal involvement in what they’re testifying about), and
- It relates to their area of expertise.
What is the Role of a Forensic Structural Engineer as an Expert Witness?
The role of a forensic structural engineer starts way before a court trial. The first role of a forensic structural engineer can start from being a consultant. As a consultant, the forensic engineer can review your case and communicate with your lawyer (if you have one), exploring weaknesses in arguments and giving feedback on technical principles involved in particular cases. Hence, lawyers get a better understanding of how best to argue them. They play an invaluable role by being blunt about how strong or weak any given lawyer’s argument may be based on their knowledge of technical details of engineering-related subjects. The best part? They can work with you from day one to help ensure that you have the full support needed throughout the case!
When a forensic engineer is called into work on a case, their role will be similar to that of a detective. The forensic engineer must investigate technical mysteries to determine fault and liability in a claim. How and Why it happened becomes an enigma that forensic engineers must solve. To do this, the forensic engineer must act as an independent engineer by conducting thorough investigations to form objective and unbiased opinions about the case at hand. This entails paying close attention to details, preserving evidence, and recording data from records or tests to uncover the truth, testing hypotheses from every angle, and finally assembling opinions and conclusions into concise written reports for laypeople to understand clearly and with ease. Read more about Forensic Structural Investigation here.
Most civil lawsuits are settled out of court, usually due to the findings of the forensic engineer. Also, lawyers often opt to settle, as bringing a case to trial and risking uncertainty could be costly. If, however, such trials go on (and they sometimes do), the forensic engineer who takes a witness stand must be prepared. This means that an experienced forensic engineer must know how to explain their opinions clearly to court members, who don’t know as much about the matter as the expert. The expert should keep their explanations simple and reiterate critical points throughout their testimony to create a clear picture of the matter at hand before the court and answer any questions with confidence.
What is the Difference Between an Expert Witness and an Advocate?
One distinction between lawyers and expert witnesses is that while lawyers must advocate for their clients, expert witnesses should not. Expert witnesses should not take on an advocacy role and should instead act as unbiased professionals with no vested interest in any one outcome of a trial or dispute.
Expert Witnesses: Investigation and Analysis
An expert’s goal is to investigate, analyse, and persuade. A persuasive expert isn’t easily swayed. An expert’s opinion is vital in getting the court, jury, or opponent to see their side of the argument. The expert needs two things to win this game: investigation and analysis. Investigation means looking at all angles and analysing what is wrong with others’ points of view. Analysis means spotting inconsistencies or errors of logic in opposing views. These skills will help the expert convince the court that they have the best answer.
The Pitfalls of Confirmation Bias
However, some engineers become too invested in proving themselves right by arguing beyond any reasonable interpretation of the facts. This is a form of confirmation bias, which can be defined as “the tendency to search for or interpret information in ways that confirm one’s pre-existing beliefs regardless of whether it is accurate or not.” This approach, as a result, makes people less likely to believe the expert and discounts their valuable opinions. The overly invested engineer undermines credibility and devalues opinions that otherwise would have been considered credible. The expert must uphold independence to maintain the integrity of the expert’s report. Any bias and advocacy can be devastating to the instructing party’s case and might lead to the court disregarding the expert’s evidence.
Responsibility of Forensic Engineer as an Expert
The most important responsibility of a forensic engineer as a retained expert is to prepare an expert report that can withstand the harshest scrutiny and stand up to cross-examination in legal proceedings. When a forensic engineer is hired to investigate a construction defect or failure, they should be aware of a few things. First, the client will use conclusions from the report to evaluate how strong their claim may or may not be, which requires accuracy and thoroughness on every level. Secondly, they may also want to use it as evidence in a later dispute. To cover these bases, forensic engineers should consider both of these goals at every step of their investigation and report preparation. A forensic engineer should ensure that their report accurately reflects the matters under investigation, anticipates alternative interpretations of the data, and is relevant for use in future proceedings.
Very few construction disputes make it to court. But if they do, forensic engineers should conduct investigations assuming that they could very well end up there. A forensic report that is not prepared for scrutiny is useless both in and outside a courtroom.
How to Choose the Right Legal and Civil Tribunal Expert for Your Building Dispute Case?
Lawyers representing parties to a dispute will often choose the expert. The lawyer will identify somebody with the appropriate expertise for the case and assess their ability to provide written and oral testimony if necessary. However, if you do not have a lawyer or intend not to get one, you better roll up your sleeves and do some serious research. The first step is identifying what type of professional you need for your case based on the nature of the claim. For example, if your claim is related to a defective pipe or poorly installed stormwater drainage system, choosing someone who specialises in the structural field may not be the most appropriate choice. A certified Plumber or domestic Civil Engineer could work better instead.
Side note: At MFS, we’ve created a shortcut for you. Give us a call, and let’s discuss your building dispute case. We will let you know what type of professional would be best for your situation.
The right kind of professional can make all the difference in your case. Once you have identified the right type of professional to act as your expert witness, make a list of all the qualified professionals in your area. Do a little research on each of them and decide which one is the best fit. Make sure to interview them over the phone before deciding whether or not they are the right person for your case.
Before you call the experts, it’s important to be prepared by having all of your questions ready for the expert. This includes information about the case, the problem at hand, and what you want to achieve. At the very least, make sure to cover the following:
- Provide them with a brief about your situation. Explain your case clearly and concisely to ensure the expert understands the dispute well.
- Ask the expert about their credentials and whether they have any experience with your particular situation.
- Confirm whether they have been involved in litigation as expert witnesses and ensure they have experience testifying in court.
- Ensure that the expert is not affiliated with any of the parties involved, or else it may lead to a conflict of interest.
- Get a clear idea of their capabilities before hiring them to know what to expect and if they will be able to meet the deadlines for your project.
- Ask the expert to explain the process of investigating a case and how cases are typically handled.
- Get a clear idea about the costs of engaging the expert to prepare a report and appear in court as an expert witness.
MFS Engineering Structural Expert Witness Checklist
You can tell a lot about an expert by their answers to these questions. If they seem friendly, knowledgeable, and eager to help with your case, then they are likely the right expert for you. Next, it’s time to get formal and prepare written instructions for the expert.
What Should Be Included in the Letter of Instruction to the Expert?
When engaging a Legal and Civil Tribunal Expert Witness, make sure they know the ins and outs of the problem by providing them with a detailed letter of instruction. The expert will need all the available information regarding the case before they accept the role. Information that should be relayed to the expert includes a summary of the matter, the issues in dispute, the items that need to be addressed, and any additional information that will help compile a comprehensive report, such as building plans, specifications, and previous reports. This will ensure that their work is most effective and results in a more satisfactory outcome.
Components of the Letter of Instruction
- Opening: The letter’s opening should be brief but still include the important details. The opening paragraph should include the names of the people involved in the dispute, the address of the premises, and the reason for the dispute. The second paragraph should describe the reasoning behind the expert’s involvement (e.g., preparing an independent expert report, giving evidence at the trial of the proceeding, etc.). You should also include any deadlines at the start of the letter because it usually turns out to be a deal-breaker.
- Introduction/Background: The Introduction section is where you provide background about the issue and the disputes. This section provides a description of the property, how old it is, and how long it has been occupied. Explain the items you allege are defective and the steps you took to resolve the issue with the other party. You can also discuss investigations that other experts and professionals have previously carried out to identify the cause of the problem and ways to rectify it.
- Instructions: In the instruction section, you must be very specific about what you expect from the expert and the scope of what their report should cover. It is crucial to identify the right scope for your claim by asking the expert to respond to the right questions. The responses will become evidence needed for making a case against or in favour of a particular cause/argument and must not come from any personal bias. Therefore, be careful not to give expert instructions about what you think is the cause of the issue. They need to be impartial and produce unbiased responses based solely on objective findings. Break questions into bullet points and sub-questions to make them easier for the expert to refer back to during their response.
- Requirements for the Report: VCAT Practice Note – PNVCAT2 sets out the format of expert reports. However, it is still imperative that you clearly list all the report requirements and be specific about all the statements, information, and documents to be included in the report, as well as what format/style the expert should strictly follow in order for their report to be admissible in court. For example, ask the expert to include the following in their report:
- An acknowledgment that they have read and have complied with the Expert Code and they agree to be bound by it;
- Their full name and address;
- Their qualifications, experience, and area of expertise (i.e., CV);
- The assumptions and material facts on which their opinions are expressed;
- Reference to those documents and other materials with which they have been instructed to consider or take into account in preparing their report;
- Any literature and materials used in support of their opinion;
- Reference to any private or business relationship between them and the Applicants;
- All instructions that define the scope of the report they are to provide (original and supplementary and whether in writing or oral);
- A statement identifying any provisional opinions that are not fully researched for any reason (including the reasons why such opinions have not been or cannot be fully researched);
- A statement setting out any questions falling outside their expertise, and
- A statement indicating whether the report is incomplete or inaccurate in any respect;
- A signed declaration in accordance with VCAT Practice Note – PNVCAT2;
- Their signature and the date of the report.
- Documents Enclosed: Enclose all the documents, plans, and reports that the expert should review as part of the investigation. Also, attach a copy of the Expert Code. The Expert Code in Victoria is known as VCAT Practice Note.
- Definition: If you want to make your letter of instruction more professional, include a definition section. In this section, you will define the terms that have a specific definition in your letter. You should then use these words throughout your letter with the capitalised first letter so that the expert can identify the meaning of the term and know how to interpret it. This will help to avoid confusion and improve clarity.
MFS Engineering Letter of Instructions to Structural Expert Witness
Download MFS Engineering Letter of Instructions to Expert.
Use the MFS Engineering Letter of Instructions template as a baseline to prepare your letter to the expert. But make sure the letter is as brief as possible and doesn’t include your personal opinion on the matter or any sensitive information. It’s important to remember that the letter will be attached to the expert report and submitted to the court. Another thing to be conscious of is that all your communications with the expert can be shared if the opposing party requests them.
What is the Difference Between Domestic Building Dispute Resolution Victoria ‘DBDRV’ and VCAT?
If you are in the middle of a domestic building (structural) dispute, before heading to VCAT, you must first file a complaint with Domestic Building Dispute Resolution Victoria (DBDRV). Usually, negotiation is the most cost-effective, flexible, and efficient way to resolve a dispute. This is what DBDRV aims to achieve.
DBDRV is an independent service offered by the Victorian government that provides a free service for resolving disputes about buildings in the Victorian state. It provides mediation services and conciliation; however, it cannot award damages or make orders.
The Mediation Process at DBDRV
The DBDRV mediates disputes. A neutral third party facilitates the discussions between the disputing parties and tries to reach an agreement. The parties to the dispute meet with the mediator or a dispute resolution officer to discuss and solve their disagreements. This process typically takes place in a series of conferences. Expert Witnesses may also be present at this time. If the parties have not yet hired their expert or building assessor, dispute resolution officers often assist by organizing an assessor to evaluate the disputed building work. The assessor will visit the site to inspect the alleged defects and determine whether the construction is faulty, inadequate, or incomplete.
If you can’t reach a resolution at DBDRV, you have the opportunity to take the matter to Legal and Civil Court.
Role of Forensic Structural Engineer in Mediation
Forensic structural engineers can play an important role in mediating construction-related disputes. Parties often dispute over the cost of repairing construction defects, but the forensic engineer can help settle such cases by analysing what happened and why it happened without attributing blame. The forensic engineer can also predict what positional arguments will be made at trial when a fault is explored, giving each party a preview of what the process will look like.
In some cases, defendants may accept blame but are unable to settle because they do not have the financial resources to pay for repairs. Mediation can be used to resolve the issue, allowing for a reasonable payment plan that is agreed upon by both parties. The forensic engineer can aid this process by identifying what should be fixed immediately, what needs to be fixed as soon as possible, and what does not need to be dealt with for the foreseeable future.
Summary
Dealing with a building dispute can be tough. Having the right expert witness by your side can make a big difference. Forensic structural engineers can help clear up the confusion, providing solid facts for your case and offering support from start to finish. They’re not just experts; they’re your guide through the tricky parts, ensuring everything is explained simply and your case is strong. Whether you’re in a dispute with your insurance company and need an independent insurance claim assessment, or you’re preparing for a hearing before DBDRV or court, their expertise is invaluable in mediation and understanding the technical details of your case.
