Connecting Lawyers with Expert Witnesses

WHAT IS THE GREATEST VALUE AN EXPERT CAN BRING TO YOUR CASE?

“Without an expert there is no case…” This was a frank insight

from counsel not long ago – and happened to confirm my own

conclusion about the greatest value I was bringing to counsel in

more recent years.

That value wasn’t just technical expertise as a forensic engineer

in the world of construction or skill at articulating issues and

findings – but rather in assisting counsel in the development of

their approach to a case. Curiously, this applies whether

counsel has a plaintiff or a defendant as their client.

The thing is, it is the rare case where counsel is knowledgeable about the technical

aspects of a case or the nature of the various business transactions between the parties

that have led to their being some sort of a dispute in the first place. What results at

times, for a variety of reasons, is that counsel may overly narrow the scope of the

experts engagement or otherwise overmanage the expert(s). This may be because

counsel believes they know the case better, out of a desire to keep the cost of the

expert at a minimum, or a myriad of other notions and intentions – which may also

dictate the selection of an expert for a case. Real value may be being lost as a result.

The mini case study vignettes below may best illustrate the ways in which an expert

may strongly and positively impact the approach to a case. They are of course not

counsel themselves, nor is it necessary for the expert to advocate for your client in their

testimony.

Casino/Convention Center – “the smoking gun”.

• In this defense case a consulting engineer was being held responsible by the

architect for (apparently) missing a revision to the architectural plans that was

made to the design development plans just prior to finalizing the construction

plans for permit application.

• This was asserted by plaintiff to have caused a significant delay in construction

and extensive during-construction redesign and rework of mechanical and other

systems that were affected by the design change – as well as premium time

labor to fix the schedule for a planned (and already booked) opening of this major

facility.

• The engineer claimed that they had never been informed of the architectural

change. Defense counsel researched the original permit application plans as

well as subsequent permitting plan review revisions without finding said revision

and focused instead on challenging the claimed cost damages.

• Ultimately we re-directed counsel’s investigation of the various architectural plans

prepared (but not issued) just prior to permit application – which ultimately

revealed that the last-minute architectural revisions had never been brought to

the engineers attention - nor submitted to the engineer in the run-up to permit

application.

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• Besides the plans themselves, it was discovered in the then-contemporaneous

project communiques that the architect did not follow their previously established

communication protocol (their own standard of care), thereby leaving the

engineer in the dark as the project design was completed and submitted for

permitting.

• This revelation dramatically changed the entire approach to the defense and the

outcome of the case.

County courthouse. Asbestos release in an occupied building.

• This was a criminal prosecution case, along with follow-on civil suits brought by

various plaintiffs.

• A very large at-risk construction management concern undertook a seismic

retrofit of the courthouse and based their guaranteed-maximum-cost contract on

keeping the bulk of the building occupied during normal business hours – and

asserting that their work plan would maintain safe conditions and avoid the cost

of relocating court operations to another building during construction.

• Unfortunately, the after-hours structural work of the project disturbed the

fireproofing on the underside of the floor decking - which then fell upon the

suspended ceiling in the spaces being kept occupied. Once the large central air

conditioning system was turned on following completion of the daily structural

work the air conditioning system effectively acted as an “asbestos transportation

and delivery system” throughout the building.

• The testimony of one of the judges was quite irate upon learning that the film of

dust found on their desktop in their chambers each morning was asbestos.

• In prosecuting the case, the state deputy attorney general was at a loss to

understand and present the motivation of the criminal activity of the construction

manager at trial.

• The key was to moving the prosecution forward was to explain to the DAG that

the defendant’s motivation was financial.

o The DAG was querulous about this explanation as the defendants’ actions

“did not increase their revenue”.

o We then pointed out that the construction management firm’s entire

contract would have been cancelled in its entirety had the asbestos

disturbance been discovered. And that this was why they defrauded their

certified asbestos consultant by telling them they were taking a “baseline”

indoor air quality measurement, and then falsely presenting those test

results to the County as though it was a post-construction air quality test,

thereby “proving” that their work methods did not result in contaminating

the building (thereby giving rise to the criminal prosecution).

High Rise Condominium. Extensive multi-floor flooding during minor HVAC repair.

• In this defense case the original construction mechanical contractor was accused

of inadequate installation of a hydronic (circulating water) HVAC system.

• Plaintiff’s experts got a leg up on the case and managed to create a line of

thinking that really “poisoned the well” on the part of the referee managing the

case. The experts perpetrated numerous falsehoods regarding the facts in the

case that were almost unrecoverable at a certain point in the proceedings.

These included:

Wrongly characterizing the role of the installing contractor (claiming

design/build versus building to the plans-and-specifications prepared by

developers agents)

o Wrongly characterizing the qualifications of the service contractor who

broke a pipe (whereas the service technician’s union-provided training

was shown to not address hydronic systems at all)

o Wrongly characterizing the meaning of testing lab results (whereas the

testing in question was done without a protocol, and even the testing lab’s

own staff observed in their notes that the testing results were being

misread, which observation was conveniently kept well buried)

o The various experts cited each others’ false assertions as though they

were incontrovertible evidence.

• In our experience we are presently observing an increasing tendency for experts

to fall into a pattern of confirmation bias, in this case apparently morphing into

group confirmation bias. This constituted unethical advocacy (and potentially

even perjury), especially as some of the early-on false assertions were shown to

be willfully and knowingly false.

• The key to settling this case was identifying and presenting clear evidence that

multiple false assertions were being propagated by the opposing side.

There are a few conclusions I have drawn over the years, that may be insightful to

plaintiff or defense counsel, including the following:

1. Selecting an expert based on credentials that are more academic than they are

from practical experience is a weak practice.

1. Relying on expert opinions that are not well supported or well-founded, no matter

how well they appear to support your view of the case, may ultimately be

detrimental to the case.

1. Letting your expert be the expert can bring great value to the case.

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Based in West Sacramento CA, the author is president of Energy Resource Associates Inc., specializing in turnkey forensic examination and engineering of infrastructure renewal for existing building mechanical, electrical, control, and structural systems. Mr. Waltz is a member of the Association of Energy Engineers Hall of Fame, and a fellow of the Chartered Association of Building Engineers (CABE — UK), and chaired the first U.S. chapter. 

Contact: jpwaltz@eraenergy.com