The Evolution of the Expert Witness

An expert witness (EW) should, first and foremost, be considered to have expert knowledge relating to the particular subject matter of his/her field, but the role is evolving.

There are several additional attributes and skills that distinguish the EW, some of which are gained from prior experience of the dispute resolution process. By undertaking testifying appointments, and developing courtroom etiquette as well as report-writing skills, while maintaining contemporary knowledge of the modern construction site at both ground level and senior management level, an EW stands to be strategically well positioned to give the most informed advice required by the client, as well as to the tribunal or court. Simply put, an EW benefits from the additional skills gained from prior experience of the dispute resolution process. However, a practising expert must maintain up-to-date technical knowledge and experience too.

To the average layperson, the differentiation between the technical capabilities of a subject-matter expert (SME) and the role of an appointed EW may seem insignificant, but definitions of each may assist. A (subject matter) expert can be defined as “a person with a high level of knowledge or skill relating to a particular subject matter”. An expert witness can be defined as “a person who is asked to give their opinion on a particular subject in a law court because of their knowledge or practical experience of that subject”.

These definitions provide a distinction between the reaching of an opinion and the presentation of the subject matter to the audience. Theoretically, there should be no difference between an SME’s knowledge of a technical matter and the EW’s application and presentation of the subject matter. Both an SME and an EW will possess a high level of technical knowledge relative to their profession, gained through a combination of practical and academic experience. Thus, when considering who should be appointed to provide expert witness testimony or reports on a disputed project, it would be expected that the person selected already fulfils these basic requirements. That said, there are other non-technical qualities that lawyers and clients must consider when selecting the right EW for a particular dispute.

To date, numerous articles have been written, which highlight the additional qualities that are typically expected of a modern-day EW. The breadth of hard skills ranges from comprehensive and cohesive report-writing skills to an ability to not only understand but also explain the technical and analytical work undertaken in reaching an opinion. What is more distinctive, however, and sets the role of an EW apart from that of an SME, is his/her ability to:

• understand the duties of an EW, which includes upholding the standards of their own profession, maintaining focus on what the tribunal or court need assistance with, and the more subtle but equally important management of client expectations and adherence to deadlines;
• become knowledgeable in the dispute resolution process itself, first through working as an assistant before leading the entire process, including the management of joint expert statements; and
• be robust under cross-examination in front of a tribunal or in the courtroom, and excel in the increasingly popular process of hot-tubbing and delivering initial presentations in litigation or arbitration.

This is all while ensuring, without falter, independence, rigour, integrity and clarity. Of course, compliance with the standards of relevant professional bodies and institutions is additionally a natural and assumed expectation.

The transition from an SME to an EW, in its simplest terms, is a matter of being appointed. Due diligence, researching past engagements (projects and appointments), recommendations, consulting peers and colleagues, and obtaining references are usually also required by clients prior to appointment. However, credibility and usefulness are measured in more subtle terms. An SME who is technically excellent may bamboozle the tribunal, but an EW will understand and be experienced in what the tribunal really wants to hear, presenting an opinion clearly and concisely on the matters instructed. As SMEs transition to EW roles, they gain a better understanding of the dispute resolution process, and the skills they acquire (both hard and soft) will be valuable – particularly if the matter will go to an oral hearing where their other skills build confidence and trust with the tribunal. The EW will face additional scrutiny over his/her background within the industry, and thus requires good communication skills, an ability to present, an agreeable attitude and good working practices. It is a combination of all the above, to varying degrees, which the EW will need to master on an ongoing basis. When faced with these options, the question remains as to whether there is a compromise between the technical aspects and the development of those additional requirements necessary to “win over the tribunal”.

THE TRADE-OFF

Overarchingly, in order for an EW to effectively assist a court or tribunal, he/she must also keep up with industry trends associated with projects and claims. One such trend is that companies are leading with more and more cutting-edge technologies, and projects are being entered into based on technological advancements that have not yet been fully developed. By way of example, some wind farms are now being procured based on contractual obligations that they will achieve an order of magnitude increase in gigawatt capacity, beyond that which has been previously achieved. However, current technology and equipment solutions to achieve this are still largely in development, and remain relatively untested over extensive time periods. The consequences of such “prototype” projects being delayed can run in to millions if not billions of dollars. Rather unsurprisingly, the costs associated with efforts to accelerate and avoid delays are dwarfed by the level of potential damages faced. If things go wrong on these projects, neither an SME nor an EW would be fully conversant with all of the technological aspects, especially as the problems encountered may not have been contemplated by the project participants in the first place. Thus, for these types of projects, where the technical skills are new or relatively untested, there is a need for an EW to provide something extra – in effect, to fill the technical gap that is presented.

What an EW may do in this instance is explain that the fundamentals remain unchanged. So, a wind turbine blade would still be a wind turbine blade irrespective of length, size and weight, though its functionality may differ, for example. The EW can draw upon their wider skillset and past experience of installation costs and benchmarking, and on their understanding of the site logistics, constraints and the manufacturing process. What is important here is that the EW has an understanding of what the tribunal should need to know in the absence of specific technicalities or historical evidence on prototypes.

THE HYBRID SKILLS

A typical distressed project will require examination of the attribution of costs as to liability, and the relevant apportionment as to heads of claims. Further expertise is thus required around the examination of costs outside the traditional construction project parameters. Commercial techniques have evolved on projects designed to tackle complicated issues such as productivity, loss and expense, and prolongation as defined under the latest SCL Delay and Disruption (D&D) Protocol. Thus, the nuances of more robust methods associated with the evaluation of claims are infrequently used at a project level.

Consequently, it can also mean that these nuances are unlikely to have been previously experienced by all SMEs. When calculating overheads for example, most surveyors favour Hudson, Emden or Eichleay, as the most appropriate formula to use based on particular circumstances; but they are all substitutes for the ascertainment of the actual costs incurred. To determine the actual costs at company level, it may therefore be reasonable to expect a surveyor to opine on company-level costs and apportionment. Although, on occasion it may be that an accountant may be a more appropriate discipline.

In addition, it is worth considering the rise of global cost or modified total cost claims (MTCC). Such claims should not typically be experienced during live projects as they should depend on the accumulation of all issues at the conclusion of the project. The reason for this is that the “various causes of compensation are impossible or impracticable to distinguish” (SCL D&D Protocol, second edition). The elements that make up such cost claims are vast, but logically cost calculation should be an objective exercise as it is a matter of fact as to what has or has not been paid; invariably, however it is not. There are questions of reasonableness, “disallowables” and necessity, all of which can cause a plethora of differing opinions. While there are difficulties in establishing global claims or MTCCs, these methods have been gaining increasing traction in establishing loss on mega-projects (ie, more than US$1 billion) that have several interlinked and complex causes of loss. These claims rely on establishing actual and anticipated costs before applying adjustments, unique to the circumstances. On the project, the day-to-day establishment of cost and value are based on the contract provisions and typically involve a bottom-up approach, ie, they are based on the application of rates, schedules, factors, measurements, hours, etc, of singular events. However, when this transitions into a global claim, or MTCC, the basis of assessment shifts to a top-down approach, which requires knowledge on matters such as accounting systems, in-house procedures, pay-roll, contributions and company attribution policies. Even so, each project will undoubtedly have different requirements in terms of the process needed for its completion where a one-size-fits-all approach will be insufficient.

There is additional work to be undertaken by the EW when dealing with global cost or MTCCs on mega-project disputes. It may be that the EW will need to conduct a technical cost analysis, but they must also to be able to explain their reasoning to a tribunal, if necessary. The explanation may be simple or may lean heavily on a deeper understanding of the principles at play. This is the additional layer of specialist expertise that comes with an experienced EW.

THE “EXPERT EW” FIRM

There exists a preference for seeking specialist EW firms with the requisite technical services (ie, an EW firm with surveying services) and a move away from engaging firms known for their professional services and then enquiring as to their most suitable in-house expert for the task-in-hand (eg, a surveying firm with expert witness services). When the sums in dispute can be so considerable, the consequences so far-reaching and expectations so high, the most comfortable option may be to use tried and tested firms, experienced in the specialist analysis of distressed projects. On mega-projects with complex issues, engaging expert EWs, together with a specialist team of assistants from within well-known EW firms with a proven track record, may therefore provide a level of comfort.

The shift toward more specialised and standalone EW firms has been gaining more and more popularity within the construction industry. Arguably, a consequence of the popularity of these EW firms has been the creation of the “expert EW”: individuals that are now specialists, indeed experts, in the provision of EW services. The criticism of this evolution is that these individuals start to become masters of the dispute resolution process, as opposed to continuing to gain exposure within their original field of expertise. However, it can be reasonably contended that the issues faced throughout this process count towards enhancing the EW’s expertise, and that they are enhanced and intense reflections of current construction industry practices. Yet, while construction methods change, technologies advance and processes evolve daily, the EW must maintain pace with all of these changes too, in order to continue to opine objectively. Should an expert EW fail to keep abreast of the latest industry developments, the final opinion they deliver may be scrutinised on grounds of robustness.

Mark Mills, Director is featured in the Whos Who Legal directory where this article is also published – https://whoswholegal.com/mark-mills?tab=Features