Introduction
Expert Consultants, or Claims Consultants, have
become an indispensable part of the American judicial system. Experts
investigate, review, and evaluate technical issues and explain their
findings and opinions to the attorneys who hire them and possibly to a
jury and/or judge so they may reach a verdict. A person is defined as
an "expert witness" when a court of law or other tribunal accepts and
confirms such recognition and allows that person to render an opinion
as evidence.
Experts are generally retained
by opposing parties in a dispute to investigate and form an opinion
regarding the issues at hand. Rarely do the experts for both sides
completely agree, if at all. The primary rule of being an expert
consultant is: your opinion regarding a specific issue should never
differ according to who has hired you; remember; everything you say
becomes record and may be used in the future. It is also advised to
work for both plaintiff and defendant (and hopefully as third party
independent retained by the court) on a relatively equal basis. The
bottom line is to perform your investigation to the fullest allowed by
budget, evaluating all avenues so you can come to the most honest and
objective conclusion, even if your client may not be thrilled with your
opinion.
Always be aware of your
limitations! Don't take a case if it is totally out of your expertise.
If you are comfortable with the matter as a whole, know when to hire
assistance when certain aspects are beyond your experience. Experts are
permitted to rely on the opinions and findings of other professionals
they hire to assist them.
Be aware of the opinions of
other respected experts in your field and established codes or
standards when forming your opinion. If you disagree with the opinion
of most other experts, or with established standards and codes, be
prepared to fully explain (and back up your opinion to all parties
involved) why your opinion should prevail.
Developing Your Curriculum Vitae
Your curriculum vitae (or resume) is a history of your background,
experience, and training. Your C.V. will change as you become more
experienced and gain further knowledge. The worst mistake you can make
is to exaggerate or be untruthful in your resume. Expect to be grilled
on your qualifications at depositions and trial. The opposing attorney
is looking for evidence to disqualify you.
Build your C.V. by listing your
background (such as engineer, contractor, inspector, etc.), your
education, including special studies, such as seminars and conferences,
then your experience, such as prior cases or significant assignments.
Being a leader in your field, such as holding elected office in a
professional association, becoming active in committees, and writing
technical papers is a great way to help establish yourself as an
expert.
Getting Work as an Expert
There is no easy way to advertise as an expert building consultant. Of
course the yellow pages has a section entitled "building consultants".
However, I do not see many firms buying space there. A web site is a
must. Some avenues of obtaining business are: schedule or sponsor a
lunch meeting for attorneys who practice in the construction litigation
field and discuss a timely topic, distributing your firm package at the
end of the meeting. Another way is to prepare a professional mailer to
attorneys, hoping they will keep your information on file. The best
advertisement, of course, is word of mouth. You will need to become
known as an authority in your field. Getting active in organizations
relative to the building industry is the best method. The rest will
fall into place if you are good at what you do.
Meeting with the Client/Attorney
Once retained it's a good idea to have an initial meeting with your
client and/or attorney to discuss the issues of the case and possibly
plan some strategy. Dress respectfully when attending meetings; a tie
and sport jacket are appropriate. Be concerned about the outcome of the
matter, take notes, and inform the client or attorney how you can help
them. Now is the time to bow out and recommend another expert if the
elements of the case are beyond your comfort level.
Gathering Evidence
Review the opposing side's documents, if available. Look for
inconsistencies, duplicate allegations, and inaccurate or misconstrued
quoting of manufacturer's specifications or codes. Oftentimes experts
use the wrong year building code or standard when writing reports. Ask
the attorney for the opposing expert's deposition transcript and review
it; you will gain an insight as to his/her opinion and strategy and may
be able to discredit it. When reviewing plans, be sure you have the
approved set or as-built set; preliminary or conceptual drawings may
not be accurate.
Be prepared and be organized!
Don't attend a site inspection of an attic wearing a suit and wing-tip
shoes. Don't arrive at a site to perform a roof inspection without a
ladder. You are being paid a lot of money to be an expert consultant
and are expected to know what you are doing as well as be prepared to
perform your inspection.
A good camera and lots of film
(it's embarrassing to run out!) is a must. Most now use digital
cameras, however, a few still use SLRs as sometimes juries mistrust
electronic due to “Photoshop enhancements". Some prefer a camera which
imprints numbers in sequential order on each photo itself; it is not
uncommon to take as many as 5000 photos during investigation of a large
project. These "data-back" cameras make keeping track of photos a
breeze. You only need to identify the photo number (and not duplicate
photo numbers during return trips) in your notes to keep a record of
each and every one. Sometimes an erasable marker board used in the
photo can be helpful to identify the condition being photographed,
however, this can be time-consuming. Be sure to use a tape measure in
photos where necessary to show the perspective of a defect, such as a
slab or wall crack. Take adequate notes and photos at the site
inspection; it may be the only chance you have to see the defects (or
lack of).
Do not discuss your opinions at
the site with other opposing experts (even if you think their
conclusion or comments are erroneous); they can testify as to what you
said during their deposition or the trial. If you were mistaken, or
have changed your opinion, this testimony may affect your credibility.
Be sure to discuss your findings and conclusions with the attorney
first. A favorite answer when another expert ask "so, what do you think
of this?" is "I don't know, what do you think?"
Preparing for Deposition
A deposition is somewhat informal, however, your testimony is taken
under oath by the opposing attorney and is transcribed by a certified
court reporter. Be careful about what you say; your testimony will be
scrutinized by the opposing attorneys and experts. Deposition testimony
is typically considered your final opinion for trial; any additional
work or opinion changes may not be admitted at trial. If you do not
have conclusions regarding the case the opposing attorney will usually
reserve the right to depose you again.
Depositions can go on for days
and be exhausting. Be physically and mentally prepared for the
deposition; avoid alcohol the night before and get a good night's
sleep. Review your documents and be familiar with their whereabouts. A
three-ring binder with tabs distinguishing different aspects of the
case is handy. You will appear un-prepared if you have to shuffle for
ten minutes through a box full of papers and photos to find an
important item. Be sure your retaining attorney has reviewed your files
prior to the deposition and removed any privileged documents; the
opposing attorney will typically study and copy your entire file,
including photos.
Always count to three before
answering any question, this allows your attorney time to object if
necessary, although you must still answer the question if you
understand it. Answer deposition questions with a yes or no whenever
possible. Do not volunteer information; you are not there to convince
the attorney of your opinion, save that for the jury. Don't answer
poor, compound, or vague questions; ask that they be re-worded. Some
questions will be outright dumb, such as "have you ever made a
mistake?" The correct answer, of course, is yes. However adding "but I
always made every attempt to correct it" limits the damage. After some
experience you will become accustomed to these tactics and be able to
counteract them. You must answer any question you understand, even if
it damages your case. Be truthful at all times, and do not alter your
opinions to favor your client. Remember, many attorneys and experts
keep files of previous depositions. Differing opinions from other cases
may damage your credibility unless you have a valid reason for the
change.
The Trial
Appearing at trial, whether in front of a jury or judge or both, is the
ultimate test of your expert skills. You testify to the judge or jury,
it is them you must convince, not the questioning attorney. Dress
appropriately, a conservative dark suit and red or yellow tie is best.
Show respect to everyone. The judge is "your honor", and the attorneys
are Mr. or Ms. _____, no matter how hard they may be trying to
discredit you. Remain dispassionate and cordial at all times. Your job
is to appear unemotional, be objective regarding the matter at hand and
state the facts and your opinions when asked.
There are two types of
courtroom examination; direct and cross. Your direct examination will
be by the attorney you are working for. Cross examination is
interrogation by the opposing counsel. Do not engage in a battle of
wits with opposing counsel. Answer only questions asked and don't
volunteer information; it may hurt your case or make it appear that you
feel the need to qualify every answer because you are unsure. Count to
three after every cross examination question so your attorney has a
chance to object and wait for the judge to rule on the objection before
answering.
Other Areas of Work
As
you become known as an expert building consultant other,
non-litigation, work may be pursued. Many times building owners,
contractors or other professionals have disputes and a knowledgeable
consultant is needed to mediate between parties. Insurance companies
may ask your opinion regarding a claim. Building owners may need
assistance in investigating a problem and designing a solution. Don't
be afraid to take on an assignment if you are unfamiliar with all the
aspects; you can act as a coordinator of sub-consultants to resolve the
problem. Remember, the key to success is professionalism and a positive
attitude.