Edward Poon | HKA
When construction disputes arise, the first question is often: What went wrong, and how do we support our conclusion? Whether it is a structural failure, material defect, or system malfunction, demonstrating the root cause requires more than technical knowledge. Uncovering the source of the issue — and communicating the findings in a clear, defensible manner — requires the expertise of a forensic engineering expert witness.
A forensic engineering expert witness combines detailed technical analysis with experience in impartially and precisely navigating legal proceedings, insurance claims, and arbitration. This makes the expert witness a linchpin for shaping legal strategies and presenting arguments that hold up under scrutiny.
The Role of a Forensic Engineer and Expert Witness
What exactly does the role of a forensic engineering expert witness entail? As a strategic partner in dispute resolution, these experts not only get to the root of what happened but also provide objective, evidence-based insights that ensure disputes, claims, and litigation are built on undeniable facts, not assumptions. Their insights are rooted in technical expertise, systems thinking, scientific analysis, and an understanding of how findings can be leveraged or challenged in a court of law.
Evidence-Based Investigation. A forensic engineering expert witness examines physical evidence, documentation, and site conditions to reconstruct events leading to failure. This investigation goes far beyond surface-level symptoms that are often incorrectly pinned as the source of disputes. Digging deep into the technical details provides clarity on the root cause, which can be buried under layers of contributing and compounding factors.
For instance, in the case of an arena collapse, a forensic engineering expert witness would analyze the debris, site evidence, and pattern of the building collapse to identify the area of origin and narrow down potential causes. Further forensic engineering investigation would analyze a range of potential design and construction deficiencies to zero in on the underlying source of the failure, such as wind resistance considerations not being accounted for in the structural design.
System-Level Understanding. A forensic engineering expert witness ensures technical expertise does not come at the expense of system-level understanding. Given that modern construction projects involve a web of interconnected systems, having a bigger picture perspective of how various requirements and technical components affect one another and the project at large is crucial for analyzing disputes holistically.
In a memorable arbitration case, one of many where I have served as a forensic engineering expert witness, a technical question arose around how to determine the performance criteria of a building system and the methodology for quantitatively determining a design’s performance. Specifically, the dispute centered on how the project-specific output specifications correlated to building codes and standards. Understanding the technical principles and how they cohesively shape building systems was the key to rendering a strong, defensible opinion that considered relevant perspectives.
Testing and Analysis. As part of their investigation, a forensic engineering expert witness conducts testing, simulations, and calculations to validate hypotheses. For example, in a dispute over a mechanical system failure, a forensic engineering expert witness might use computer simulations to replicate the failure and detect the exact point of malfunction. Exercises like this use a scientific approach to evaluate possible scenarios, eliminate the least likely outcomes based on evidence, and provide the necessary level of detail to determine the proximate cause.
Expert Testimony. Just as important as their technical expertise is a forensic engineering expert witness’s ability to translate complex analysis into precise and compelling testimony that judges, juries, and arbitrators can understand. This necessitates a mastery of effective communication skills and experience to understand how findings will be used in court or arbitration.
In the case of a construction defect, a forensic engineering expert witness might explain in lay terms how a design flaw led to water infiltration and structural damage. By painting a clear picture and presenting an appropriate level of technical evidence that is easily understood, a forensic engineering expert witness enables the court to fully grasp the issues at hand and make properly informed decisions.
The power of a forensic engineering expert witness lies in drilling down to the truth and authoritatively delivering the cold, hard facts that yield fair resolutions.
How to Identify the Right Forensic Engineering Expert Witness
In technical disputes, outcomes hinge on both the quality of the forensic analysis and the testimony presented. This multifaceted need underscores how critical it is to partner with the right forensic engineering expert witness, especially when the stakes are high. Hiring the wrong expert can cost you time, money, and even your case.
There are many factors to weigh when identifying the right expert for a dispute. Three fundamental considerations set the stage for finding a partner who can drive a decisive resolution.
Look for a Broad Base of Experience. A forensic engineering expert witness with diverse experience has the ability to pinpoint specific problems and understands the ins and outs of the larger building system in which they function. A broad base of knowledge and experience allows them to conduct thorough investigations that assess the possibilities, skillfully connect the dots across disciplines to uncover the root cause, and provide insight from an expansive point of view, rather than a narrow focus.
Verify Their Ability to Strategize for Dispute Resolution. Shrewd technical analysis is just one aspect to consider when evaluating a forensic engineering expert witness. Accelerating dispute resolution relies on them operating in a strategic capacity and communicating clearly in line with that direction. They need to be able to navigate the complexities of the case, serve as a thought partner, and deliver well-defined, comprehensive insights.
Prioritize Independence and Objectivity. A forensic engineering expert witness must be an independent, unbiased third party. Their job is to uncover the truth, not to advocate for any side. Look for an expert with a reputation for objectivity and integrity, as their credibility carries significant weight in dispute resolution proceedings. Expertise without impartiality will jeopardize a case without fail.
The quality of a forensic engineering expert witness can be a driver or a downfall in dispute resolution. Prioritizing broad experience, strategic insight, and credibility supports a process that is thorough, efficient, and effective.
Lessons Learned: Avoiding Pitfalls and Ensuring Credibility
As an experienced forensic engineering expert witness, I have encountered scenarios that emphasize best practices for establishing expert findings that stand up to scrutiny in reports and under cross-examination. I have also observed situations where oversights, even minor ones, undermine credibility or create unnecessary challenges. They both offer valuable lessons for avoiding pitfalls and ensuring a forensic engineering expert witness puts their best foot forward.
Consider All Available Evidence and Scenarios. The scientific method is at the heart of forensic engineering. It involves reviewing possible scenarios and systematically eliminating alternatives based on evidence until a conclusion is reached. Documenting evidence and explaining why it was included or excluded in the analysis is essential. Omitting evidence, even a seemingly insignificant detail in construction records, leaves room for opposing counsel to suggest bias and could become a focal point during cross-examination.
Evidence Must Be Clear and Specific. A forensic engineering expert report needs to be comprehensive and specific. General conclusions or summaries of documents can leave room for interpretation and weaken an expert’s position. Points should be illustrated clearly, citing specific evidence from documents, including excerpts, figures, and diagrams.
For example, in a case involving infrastructure construction, citing documents and tabulating the location and number of construction deficiencies can help correlate the observed deficiencies to the as-built construction. This direct correlation, upheld by detailed documentation, provides a stronger foundation for the opinion than simply providing a general conclusion.
Quantifying and Tabulating Evidence Matters. When forming an opinion, it is critical that an expert quantify and cite occurrences with specific document references to avoid vague conclusions. For instance, a dispute over construction deficiencies would call for tables or charts that list each defect, its location, and the corresponding document reference. By tabulating the evidence, findings are presented in a clear, cumulative picture that is more persuasive and easier to defend during testimony.
Mitigate Risks During Cross-Examination. Cross-examination can be a minefield, especially when opposing counsel uses leading questions or tries to refute an expert’s opinion without presenting specific documents. Making sure expert reports meticulously cite documents referenced mitigates these risks. If opposing counsel attempts to challenge an expert’s opinion by suggesting their conclusions are not well-supported, the expert can quickly reference the relevant evidence and refute the claims, reinforcing their credibility and thorough analysis.
The bottom line is that there cannot be any ambiguity in how the evidence is interpreted. Following best practices, a forensic engineering expert witness can provide clarity based on logical reasoning and conclusions firmly grounded in facts.
Construction claims and disputes demand the truth — and a clear, defensible opinion that makes the truth indisputable. By leveraging technical expertise, revealing the root cause, informing legal strategies, and delivering conclusive testimony, the right forensic engineering expert witness can be a powerful asset at the crux of successful resolutions.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.