What is an Expert Witness?
An Expert Witness can be defined as a person whose knowledge and experience in a particular specialism is far superior to that of a layman. As such their knowledge is valuable to the courts or similar ruling bodies in order to reach a just and reasoned judgement in disputes.
You can be an expert witness in many specialisms, however for the purpose of this article we will be mostly interested in expert witnesses in relation to construction disputes.
There are typically 3 types of Expert Witness in England and Wales:
- Party appointed expert (PAE) – Appointed by one party involved in the dispute. Their primary duty is to assist the court and this overrides any loyalty to the party that is paying them.
- Single Joint Expert (SJE) – Agreed by and appointed by all parties involved in the dispute. Their primary duty is to assist the court and this overrides any loyalty to the party that is paying them.
- Expert Advisor – Can be appointed by either party to advise on the dispute. Does not have a duty to the court and will often not give evidence.
You may be thinking that if a certain party appoints the expert witness and responsible for their payment, then then the expert witness’s loyalty would be to that client. However Civil Procedure Rules (CPR) Part 35.3 states that an expert witness has an overriding duty to the court and not their client:
Experts – overriding duty to the court – CPR 35.3
(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
All expert witnesses should be familiar with the provisions of Part 35 of the Civil Procedure Rules and any related Practice Direction. This sets out the requirements that the expert must comply with when preparing their expert report, including the form of the report.
What does an Expert Witness Do?
The expert is responsible for ascertaining the facts of the dispute, in an objective and impartial manner and then to report those findings to the tribunal in order to assist the tribunal in coming to a decision. This can include detailed quantum and delay analysis.
Experts may give an opinion on a matter as opposed to stating only pure facts. They are obliged to discuss all aspects of the case within their expertise, even if this goes against what a client would like them to say.
When an expert has provided his / her report to the court, it is common for them to be cross examined on the evidence they have provided. Therefore, the expert must be completely sure of their findings and where they will often be backed up by factual evidence.
It’s prevalent to point out that whilst a large part of the expert’s role revolves around their appearance in court; the gathering of information, analysis of the dispute and the production of the report can often take months and months of work. In some particularly large and high profile cases, this process can actually take years and involve a large team of expert and supporting staff.
The Principles of Expert Witness Evidence
There was an industry ruling by Justice Creswell in 1993, known as the ‘Principles of Expert Evidence’, which are widely recognised as guidance for the duties and responsibilities of expert witnesses providing evidence.
- Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
- An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his/her expertise. An expert witness in the High Court should never assume the role of an advocate.
- An expert witness should state the facts or assumptions upon which his/her opinion is based. He/she should not omit to consider material facts which could detract from his/her concluded opinion.
- An expert witness should make it clear when a particular question or issue falls outside his expertise.
- If an expert’s opinion is not properly researched because insufficient data are available, then this must be stated with an indication that the opinion is no more than provisional.
- If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such a change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.
- Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.
How to Become an Expert Witness
Most construction Expert Witnesses have had a successful career within their specialist profession. Often Quantity Surveying for Quantum Experts and Planning for Delay Experts.
However a successful career in a technical role will not necessarily make you a good expert witness. As highlighted earlier, there is a considerable amount to be learnt about court procedure and how to be a good expert witness in addition to sound technical experience.
Most reputable expert witnesses have worked in the sector for many years and have learnt their profession from assisting industry leading experts prior to being given the opportunity to lead a case themselves.
An expert witness will often be a highly qualified individual with at minimum, a relevant degree, membership to a professional body and often studied further education such as an LLM / LLB / MSc in Construction Law.
To become an expert witness, it is most common to serve time in a supporting role to an expert witness prior to being appointed an expert in your own right.
Most candidates will do this by joining specialist Expert Witness Consultancies in supporting roles such as Senior Consultant, Managing Consultant or Associate Director.
During this time you can learn what makes a good expert, often take charge for sections of an expert report and increase your reputation and network in the law industry.
It is mostly law firms representing the parties involved in a dispute that will appoint the expert, so it is very important to build a reputation and make yourself know to construction lawyers and solicitors if you are to eventually be appointed as an expert witness on a regular basis.
Maxim Recruitment and Expert Witness Work
Maxim Recruitment is a market leader in the recruitment of construction claims and disputes professionals. We have an enviable client base which consists of industry leading, corporate expert witness consultancies. As well as highly reputable, smaller to medium sized boutique consultancies.
If you are an aspiring expert who would benefit from discussing your career options with a specialist recruiter in this sector then please get in touch with us to discuss career advice and opportunities within this sector.
About The Author
Senior Recruitment Consultant, UK
I am based from the Maxim Recruitment head office in Melton Mowbray, Leicestershire and I specialise in the recruitment of quantum and delay, claims and expert witness professionals in the UK and Overseas. With over 11 years’ experience spent recruiting construction professionals, I have an extensive knowledge of the construction industry and an enviable network of reputable clients and contacts, allowing me to find my candidates the right position with highly desirable employers.
Latest UK Quantity Surveying Jobs: https://www.maximrecruitment.com/quantum-delay-claims-and-dispute-jobs