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Hiring The Right Expert Witness For Your Construction Case

cbeecher Construction Law

Researching, validating, and hiring expert witnesses for complex construction defect cases can be a daunting task. With over 40 years of experience as a building envelope professional, Will Smith, President of GCI Consultants, has become an expert on experts. He recently provided our readers with some insights on how to select the right expert witness for your case.

What Types of Experts Are Out There for Construction Attorneys to Consider?

Generally speaking, there are three types of specialists called upon for these cases:

  1. Professional Architects
  2. Professional Engineers
  3. Specialists

Architects and engineers are generalists in the field and are often called upon for these types of cases. There are other experts who are true specialists who possess a greater understanding of particular areas, like roofing, for example. A roofing specialist might hold industry certifications, such as Registered Roof Observer or Registered Roof Consultant, and very likely has been a roofer in the field for many years. This means he/she will have more practical knowledge of roofing materials and applications.

How Is Being a Specialist An Advantage (vs. a Generalist)?

A generalist is very valuable but depending on the subject matter, a specialist can offer a real advantage regarding the materials in question. Their opinions may be given more weight than an architect because they’re someone whose opinions come from doing it day in and day out.

Is The Impulse To Automatically Select An Architect As A Construction Expert Witness Misguided?

It is not misguided, but it depends on the field of testimony and the type of alleged defect. Architects make great expert witnesses for certain cases.

For example, in a case with an allegation of a window or door being installed improperly in a building – an architect or PE has the ability to do their own inspection and provide expert testimony as to whether or not it was done in accordance with codes and manufacturing instructions.

But let’s say that the allegation is not because of improper installation but is rather a manufacturing or design defect of a window. For that case, you need someone who is able to speak to that defect. GCI has specialists who have that practical experience to fill in those gaps. We also have a tremendous amount of experience in terms of the usage of these products and can testify about special product requirements.

Who Is Qualified To Testify As A Construction Expert Witness?

The short answer is anyone the court finds acceptable.

The courts qualify the experts before a jury trial. Often, the qualifications of the expert are challenged prior to offering testimony. The judge then decides whether the expert will be allowed to testify on issues within a specific field of expertise.

The attorney needs to do their due diligence to make sure that the expert’s knowledge, skill, and training fit into the needs of that particular case.

What Kinds Of Misconceptions Do Construction Attorneys Have About Hiring An Expert Witness?

Well, it’s not really a misconception but there is behavior from certain attorneys that concerns me and that’s when an attorney looks to retain an expert with the goal of using him/her to confirm their objectives for the case. For example, I’m being interviewed as a potential expert, and then the attorney explains in great detail what the defect is and proceeds to tell me their opinion about the claim to get me to say that their client did nothing wrong before I’ve ever been hired.

It’s a misconception to think that the expert is out there to fulfill the attorneys’ wishes. At the end of the day, my job is to tell you the truth and while you may not like what I have to say, you need to hear it because you need to understand your clients’ liabilities so that you can address them well in advance.

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Which Types of Construction Defect Cases Is GCI Most Appropriate For?

We have extensive experience with the building envelope and are true experts on everything that lies within it – such as siding, brick, stucco, waterproofing wall coatings, deck coatings, below-grade waterproofing, roofing systems, windows, doors, glass, and glazed curtain wall systems.

My personal areas of interest are glass systems, and windows and doors. That’s my upbringing. I started my career with a windows and doors company fifty years ago and I’ve enjoyed it ever since.

Does GCI Handle Commercial or Residential Construction Cases?

We’ve been handling both types of cases for over 30 years. Our experts have done thousands of claims from single-family homes to industrial and commercial spaces including low rise and high rise buildings. We help all industries and have handled cases for healthcare and hospitality clients, recreational centers –even large entertainment arenas. We’ve handled class action suits involving several parties including one that involved 40 parties spread out over 30 states. We have represented both plaintiffs and defendants.

What Kind of Practical Knowledge Or Field Experience Makes The Experts At GCI So Valuable?

Most of our team has risen through the ranks gaining hands-on experience along the way. Everyone on our team is also encouraged to take advantage of all continuing educational opportunities out there in the industry so that the client has the most up-to-date information available.

How Does GCI Work With Other Experts During A Construction Litigation Case?

Right now, I’m working on a report that is a defense case for a product manufacturer and the attorney has hired three experts – an engineer, a lab, and us. Whether they call me first or last it doesn’t matter – I go through the needs of the case, problems, and challenges and I recommend how to work with the other experts so that we cover any potential exposure for the clients. The key is good communication and collaboration between your experts.

What Are The Most Important Qualities To Look For When Selecting An Expert Witness For A Construction Case?

I would recommend looking for someone with confidence and consistency in opinions from one case to another. You don’t want to hire someone who flips constantly on a position depending on the case. You’ll also need a good communicator who is able to improvise quickly especially during testimony. A good attorney will try to catch a witness off guard so you need to thoroughly know the case and be able to pivot when necessary.

How Many Experts Should An Attorney Interview Before Making A Selection?

I would recommend interviewing at least two or three experts and weigh the pros/cons of each before making a decision. Most attorneys have access to databases to do research on experts ahead of time. They can use the data to find out their testimony on prior cases.

Again, look for consistency, communication style, confidence in their positions, and their abilities to respond evenly under pressure and improvise when they need to.

Why Do You Believe That So Many Attorneys Have Chosen to Work With GCI?

I’m very proud of all my experts because they strive to maintain the qualities I just mentioned earlier. I think we have the knowledge base and the experience but also the confidence in our work. We are consistent and provide a final work product that stands up to scrutiny. That consistency from one case to the next has lead many firms to call us back many times.

Is There One Construction Case That Stands Out As A Success Story For GCI?

GCI as a whole has had a number of successful cases. Paul Beers had a case representing the owner of a hotel chain that had multiple properties and we performed investigations in several states across the country and found a number of construction defects. The trial resulted in a significant settlement for our client.

Another case was a large estate that involved a single-family dwelling where we were representing the defendant and got a 100% defense verdict for my client.

Any Advice For Paralegals or Junior Attorneys Who Are Part Of the Expert Witness Selection Process?

Do your homework – get those into databases to get copies of prior testimony to look at highlights of expert testimony from various experts. Get a copy of their CVs so you can understand their education and experience. Dig into those and see how they relate to the case. Nothing would be worse than to go into the senior attorney recommending an expert and they see that the person has no significant experience in the type of case you’re working on.

Remember that consistency and honesty are key. Your expert should deliver consistent testimony and should be comfortable telling you the truth. You and your clients want to know their exposure to liability and whether they need to settle before going to trial. The right expert can help save you a lot of headaches along the way.

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