Melissa Brumback’s Construction Law in North Carolina blog won the 2011 Best Construction Blog competition. Her blog remains as good as it was two years ago. (Of course, there are many additional competitors this year.) This blog is obviously relevant if you are an architect, engineer or contractor in North Carolina, but her insights transcend jurisdictions, so you will discover value in bookmarking her blog regardless of where you are located.
In a recent post, she discusses the process of arranging for expert witnesses. I learned something new here. I’ve had the good (or perhaps bad) fortune to survive a nasty bit of litigation some years ago. Thankfully, the judge cleared my business and awarded costs — of course these didn’t equate to the actual defense costs — and I didn’t need to hire expert witnesses. However, I’ve always wondered: “What happens when the expert witness determines he or she cannot support your case?” It turns out, you don’t have to disclose this rather important piece of information to the other side — but you will certainly need to pay the witneness’s invoice.
Eventually, most construction lawsuits of any size involve hiring experts to review the project. These experts then usually issue an opinion as to whether or not you, as the design professional, violated the professional standard of care for architects or engineers working on a similar project in a similar community.
If the case proceeds to trial, all sides will have their own expert(s), with rare exceptions. Thus, the “battle of the experts” begins. That is, a jury will have to listen to your expert, their expert, and the juror’s own common sense, and try to make out who is correct. As with most things, there are probably valid points made by all of the hired experts (that is, of all the reputable ones, at any rate). If a case gets to trial, you can be sure of it.
Hiring an expert to support your position can be a scary prospect. You will essentially be paying (or having your insurance carrier pay) to have a competitor look over all of your work with a fine-tooth comb and 20/20 hindsight, to see if he can concur that your design met the standard of care. Your attorney should work with you to get a good, solid professional peer retained as your expert; however, if you have any suggestions of who to use (or, who you do *not* wish to use), make those opinions known. It is important to hire someone who is impartial about the outcome of the case, but you will not be required to hire your worst enemy/competitor.
Another protection that is built into litigation, is whether or not the expert’s opinion will ever see the light of day. If the expert cannot support your position, he will be designated a “consulting expert” and his opinions will remain only between you, your lawyer, and the expert. Assuming the expert does support your position, he will be designated as a “testifying expert,” at which point the other side can look at his records and notes, read any written reports he generates, and take his deposition.
Hiring an expert doesn’t have to be an arduous process, but work with your lawyer to get someone you respect on your side of courtroom.
You’ll find lots of useful information in Melissa Brumback’s blog.