Disputes can become complex and technical in large construction projects and the financial implications substantial.
With so much at stake when heading to court, it’s important to understand how to engage and manage any expert witnesses called on one’s behalf.
As Vincent Lefeuvre of global business advisory FTI Consulting explains, it’s likely a dispute involving a large project will include technical matters best explained by professionals qualified to understand them. This is particularly true when projects involve international partners or subcontractors from different cultures, large financial amounts and differing regulatory frameworks.
Sahil Shoor, partner with Gowling WLG, agrees.
“Construction projects always involve factual questions of what, where and when,” he told the Daily Commercial News. “However, responsibility invariably turns on more intricate questions of cause and effect and expert evidence is usually required, often across more than one discipline. The expert phase is often therefore the most critical part of the dispute resolution process.”
Managing expectations is important, writes Clive Holloway, FTI senior director of construction solutions.
“The expectation of the appointing party is often that the expert witness will not only be able to support the statement of claim or defence as presented and submitted but, will also adopt a position that favours his or her client.”
At the same time, there’s also some responsibility to be assumed by the expert themselves, Lefeuvre points out.
“They must accept this role only if their skills allow it. The expert must have the required skills, and must also use them objectively.”
“It goes without saying that it is important to select the ‘right’ expert,” Shoor continued. “This means ensuring not only that the expert has the appropriate qualifications, technical expertise and reputation in the relevant field but also (if possible) suitable experience of the dispute process and of writing expert reports and giving evidence in adversarial proceedings.”
Likewise, there are risks if the expert does not have all the required information.
“Withholding written evidence from the expert forces him or her to formulate unnecessary assumptions which may be difficult to substantiate or are simply wrong,” explains Lefeuvre.
Timing is also an issue. The earlier an expert is brought into the process and the more information provided to them, the better.
The first benefit of early engagement is the ability of the expert to properly understand the nature of the dispute, Lefeuvre explains.
As Shoor points out above, cases are fact-intensive and complicated. The facts may be intertwined.
Another reason to engage experts early is to temper expectations of the claim being made.
“Claimants are usually intent on maximizing their claims, based on the mindset that, and from my experience, on average, they aim to secure approximately 50 per cent of what they claim, with the rationale seemingly being, the higher the claim the greater the potential return,” says Lefeuvre. “It should however be part of the expert’s role in the early stages of appointment to manage his or her client’s expectations, which may involve significant reductions in the sums claimed to present a more realistic and sustainable claim going forward.”
Such inflated claims often fail and only incur extra time and expense attempting to justify them.
There is always the possibility that the opposing counsel will question the impartiality or attempt to discredit the qualifications of an expert called by the claimant.
Any suspicion of bias could prove disastrous for the party concerned, Lefeuvre says.
He describes such attempts to question impartiality this way: Would their report or testimony be significantly different if they had been the expert for the opposing party?
“It must be impartial and independent on the one hand and scientifically correct on the other.”
Expert witnesses “must have an overall vision of the case and adapted knowledge and experience of the technical issues at stake,” concludes Lefeuvre.
Given that, they also require “lots of preparation and access to all relevant documents and numerous discussions with the project personnel to understand the issues in dispute,” says Shoor.
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
Recent Comments
comments for this post are closed