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Commentary: Practical Use of Expert Witnesses in Construction Defect Cases

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Construction defect litigation is inherently complicated. This is because construction involves a multitude of parties with separate contracts that create potentially divergent, and, at times, conflicting interests and motives.    

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One source of complication is the accumulation of large quantities of documentation to be reviewed and analyzed, including e-mails, drawings, specifications, correspondence, meeting minutes, purchase orders, etc.

Another source is the continuing evolution of design styles and construction methodologies, which has resulted in new and complex ways for projects to go wrong. New products may not perform as promised; new systems may not have all the kinks worked out, and radical designs may result in unanticipated problems. The construction process has also become even more complex in recent years with the exponential increase in the number of additional parties that have been included in the process.

The combination of these trends has resulted in a new environment in which construction defect litigation can last far longer than the construction process and may involve nearly as much money.  

A frequently disregarded but critical element necessary to pursue or defend a construction-defect claim is the retention and strategic use of the construction-defect expert witness.  

But what characteristics are needed to be a good construction-defect expert witness?


Retention of the Right Expert

An expert needs to have a wide range of experience and skills to be effective. At a minimum, most states require that an expert be licensed in the jurisdiction where the trial is located in order to testify.  

In addition to the above, an expert witness should possess the following skills and attributes:


A.    Knowledge and Experience in Relevant Issues

The expert must have hands-on experience, not just academic or litigation-support experience. Practical experience allows the expert witness to put the facts into the context of the real world and not simply address them in the abstract.

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