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What do they do?
Because
construction claims are so complicated and require particular skills, the use
of an expert witness is almost mandatory.
Most states and the federal government allow an expert witness to testify if
that testimony is something that is not within the common knowledge of the
everyday person.
That is, if the work that is being evaluated is something that a reasonable
person would not be able to evaluate, and an expert in that particular field
could aid in that evaluation, then that expert's testimony is allowed.
In other words, expert testimony is allowable when the conclusions to be drawn
by the arbitrator, judge or jury depend on facts that are not common knowledge
to men or women whose experience or study enables them to speak with authority;
or when the conclusion to be drawn for the facts as well as the knowledge of
the facts themselves, depends on professional or scientific knowledge or skill
not within the range of ordinary training or intelligence.
It is easy to see that workmanship in the construction area is not something
that is normally within the realm of everyday knowledge. Certainly, cracks and
shades of color are things that can be testified to by anyone. But the reason
for cracks, or when cracks might arise, is not something that can be testified
to by a layperson. In this regard, you might consider the use of and expert to
testify.
Further, most courts and arbitrators believe that both parties will see things
differently. Even if we assume that everyone is telling the truth, the truth is
not always viewed the same by all parties. The use of an expert, one who is
somewhat independent, could lend a great deal of weight to your particular
viewpoint.
Finding & Qualifying the Expert
Finding an expert in the construction area is really not that hard, but
finding a competent expert is.
If we are dealing with plumbing, the expert witness should be a person with
plumbing expertise. Similarly, if we are dealing with another sun-trade, it
would be wise to have an expert who has that particular expertise. You should
also distinguish between remodeling and new construction. These requirements
are self-explanatory. However, a more important aspect of the expert's ability
would be his background and experience.
An expert witness should be someone who has substantial credits in the
particular field. Has the expert written any articles, lectured or trained
anyone in the field?
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Another
major item of importance is the credibility of the expert, as well as his
ability to communicate. Many experts truly are good craftsmen, but do they have
the ability to communicate their knowledge an expertise, as well as convince
the arbitrator, judge or jury of their position?
You may wish to contact local trade associations to find people who have
lectured, trained or even advocated certain positions before regulatory
agencies and legislative bodies - people who have been on the "firing
line" and know the art of convincing others with words.
You should be wary of using the same expert over and over again. You do not
want an expert who is only a witness. Remember; the expert should be one with
expertise in testifying.
Don't forget to find out if the expert has rendered opposing opinions
previously.
Don't Delay
It is advisable to contact an expert immediately upon the possibility of a
claim arising.
Although an expert usually is thought of as someone who testifies at a trial,
and expert's unbiased opinion can greatly aid you and your attorney in
negotiations. Further, you and your attorney will need to prepare for trial in
the event that negotiations break down. In that case, the expert's aid and
advice will be of great value.
Another important aspect of using an expert is determining and evaluating the
other sides claims, including the other side's expert
Opinions
The use of an expert witness greatly aids you in the preparation and
conduct of litigation or arbitration. You should engage the expert at the
earliest moment that the likelihood of a claim arises. The expert should be one
who not only has credentials of expertise in the particular field, but one who
can communicate that expertise and his or her opinion with credibility.
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