James Platt | Advise & Consult, Inc. | November 11, 2016
1. An expert witness when called upon to opine during the litigation process first has the obligation to understand the case he is being asked to become involved with and also understand his role of support as a participant in the process. The parameters of this role first come from intake data from the client answering the questions of who, where, when why and how.
2. The story behind those questions is the forensic investigation gathering support data upon which an expert opinion can be based. It then becomes the expert’s job to investigate the case circumstances, develop the evidence trail, report his findings in an opinion based in fact and provide the support documentation necessary for the opinion.
3. It is often said that an attorney does not want to ask a question of a witness that he/she does not already have the answer to. The role of the expert is support by giving confidence to the attorney of the questions they ask.
4. This role of evidentiary support investigations often calls upon the expert to travel, review after-the-fact circumstances, uncover causation and provide information from code regulations and practices and standards of the industry involved. In the case of a plaintiff it also includes the dollar amounts that will correct the as-is condition and restore the property or person to its former whole. In the case of a defendant it may include the refutation of an opposing expert’s opinion with an alternative point of view as well as an assessment and estimate of costs to repair/restore based on an the defendants experts alternative opinion.
5. An expert’s opinion is most often based in industry standards and practices supported by code rather than written RCW law. Most experts have a basis of original expertise in a particular industry field, i.e. structural or materials engineering, electrical, plumbing, concrete, steel erection, medical, safety and so on. There are many times when a structural engineer has to provide a detailed report on the costs of rebuilding a house flawed by water intrusion from windows, doors, roofs or some other external source. The original report may detail the extent of the structural damage to support posts, beams and point loads but has to include in the cost details of the demolition all or a portion of the structure including the electrical, plumbing, heating, insulation, drywall and finish details. If that expert is not well versed in all of those trades he may need to reach out to others in those respective fields for additional information to support his report.
6. The cost of providing the case support for forensic investigation and documentation is usually based in billable hours and expenses. It is not uncommon for a client to want everything in detail but not have the budget to do so. It is very reasonable for both the expert and the client to discuss financial expectations and provide estimated budgets for time and expenses based on an initial review of the case.
7. For example, a case that involved a house fire in Spokane and its restoration by a local contractor required me to travel on behalf of my client the plaintiff from Seattle to investigate the final condition the contractor had left the house in and compare it to the insurance adjuster’s specifications. My job: did the contractor do what the insurance company specified in their estimate and if not, report what went wrong and what it would take to restore it to the original specifications. The client was hopeful that this could be done for an original budget allocation of a thousand dollars. I pointed out to them that travel expenses of an airplane ticket and local car rental were more than $500 dollars plus my days’ worth of investigative time on site left no room to really provide the research documentation support for their case. I was asked to provide an estimated budget for my investigation, reports and to include the need to provide testimony in deposition and/or mediation or trial. We were able to come to a reasonable understanding of what it was going to cost and move forward with the case.
8. Another case I had involved the substandard work provided by a local inexperienced contractor. The work had been started during the summer with an estimated time of construction remodeling of 3 months. Some 8 months later, well into the winter months of below freezing temperatures the project had still not been completed. When I visited the site with the client the studs were bare, rough electrical wiring had been pulled, the rough plumbing had been installed and the water lines activated and pressurized. While we were in the house I noticed a substantial amount of construction debris floating in about a foot of water in the crawlspace. No attempt had been made to protect the pressurized water lines and one of them had frozen, split and thawed filling the crawlspace with water. We immediately called a plumber to repair the leaking water pipes and a remediation specialist to deal with the water in the crawlspace. It took about a week to get things back to a reasonable point of beginning and then it started to rain. Unknown at the time, behind a pile of construction debris in the backyard, a rain leader discharge had been disturbed behind a pile of debris left by the contractor. Several days of rain water refilled the crawlspace from this misdirected downspout. Not only was my job to document and detail the code violations of the original work but to also assess the property damages of the neglected work. I opined that it was the responsibility of the contractor to protect the homeowner’s property from sub-standard work and negligent behavior and I supported my findings with photos of the ongoing property damages as well as detailed costs of the original contractual repairs and the subsequent additional
damages of neglect.
9. It is the responsibility of the expert to develop his opinion through the investigative process of the evidence presented. An opinion needs to be independent of the client and based on the facts where they may lead. It is improper for a client to dictate the methodology of the experts’ forensic process and then by extension direct the experts’ opinion to a preformed conclusion. It is however completely proper for a client to offer their personal point of view of the case based on their review of the current evidence so the expert has a basis of understanding what the client is thinking and why they are think that. One of my cases involved and architecturally designed foundation wall with intricate designs formed in the concrete wall. The concrete mix used in the pour was a special formula of self-consolidating concrete which is poured in a much more viscous condition than normal slump concrete material. The concrete delivered to the jobsite had a number of large double fist sized spalls of dried concrete that had to be removed by hand from the truck delivery chute. The specifications for the special mix along with the written contractual obligation of delivery of the materials to the end of the chute were the responsibility of the concrete provider. It became the responsibility of my client as the material left the end of the delivery chute with its final placement and curing and my report opined these findings. For some reason the client as the plaintiff had a different take on the circumstances of the damages and wanted a paralegal within his company to rewrite my report to coincide with his opinion and have me sign it as mine. Needless to say I respectfully declined to have someone else tell me what my opinion was and my involvement in the case ended shortly thereafter.
The point here is that an expert has to have the autonomy to opine on wherever the evidence may lead. To have a flavor of how the client my want to present his or her case is fine and an expert can use those thoughts to see if the evidence will support the development of the case in that direction. It is obviously very improper to direct an opinion by a client towards a specific opined outcome. The facts of the forensic investigation must control the opinion of the expert.
Conclusion: The role of an expert is in support of the client directed by wherever the evidence of the case may lead and not become suborned testimony. An expert’s obligation is to his client which includes telling them the truth of what the facts say. It is the responsibility of the client to give a complete and honest history of the case facts and for both the client and expert to work together in developing the case and all its support documentation as the evidence can support.