Article: April 2018: Construction Litigation Update

Expert Evidence in Construction Arbitrations: Some Key Pointers. Construction projects involve a wide range of technical trades and expertise. Disputes arising from construction projects, which are increasingly decided in the context of arbitration, therefore require significant reliance on expert evidence. Construction arbitrations often require programming experts and experts in technical disciplines such as architecture, mechanical engineering, electrical engineering structural engineering and the like and, in international commercial arbitrations, expert evidence on local law or quantum are also frequently necessary. Since construction
arbitrations arising from major projects are inherently expert heavy and will often stand and fall on expert evidence, selecting and presenting the best possible expert evidence is imperative to a successful outcome.

This section of the newsletter will discuss key pointers and common mistakes to consider when selecting experts, best practice and potential pitfalls when briefing experts and practical tips to work effectively with experts in the preparation of their reports and testimony.

Expert Selection. There are three general factors to consider in expert selection: (i) The expert’s eminence and experience in the relevant subject matter, (ii) the expert’s credibility and (iii) soft skills transferable to the role of an expert witness (such as good oral presentation, organization, teaching abilities, and adherence
to strict deadlines).

There are many experts who make their livings primarily from expert witness engagements. Because they are used to performing in a litigation context, these professional expert witnesses typically have stronger soft skills than subject matter experts who make their living practicing their trade. There is a certain ease in working with a professional expert, since they are likely to have good oral presentation skills, understand the arbitral process and legal jargon and will generally need less supervision.

While these soft skills do matter, much more important is the weight the
arbitral tribunal will give to the expert’s evidence. When deciding between two
conflicting experts’ opinions, a tribunal is likely to give significantly more weight to the opinion of an expert who has extensive day-to-day experience and credentials in the subject matter area on which the expert is opining than it will give to the opinion of a professional expert with great presentation skills but with more limited experience in the relevant subject matter. For example, in a case where Qatari law is pivotal to the outcome, expert evidence on Qatari law from a senior practicing lawyer who contributed to the drafting of key Qatari law legislation will have significantly more weight than the evidence of a Qatari law expert who might be well spoken, but who has never appeared before the Qatari courts. The deeper an
expert’s personal, hands-on experience with the subject matter, the greater the expert’s credibility will be.

Also important to credibility is the expert’s independence. It is very damaging to the expert’s, party’s and party’s lawyers’ credibility in the arbitration for an expert to be—or even be perceived to be—anything but completely independent. Experts are virtually always required to be independent under the rules that govern international arbitrations; (see, e.g., the Ikarian Reefer principles, CPR 35 and the CJC guidance in England and Wales and the IBA Rules on the Taking of Evidence in International Arbitration (Article 5.2(c)). And, it independent expert. However, even without these rules and obligations, it is in the client’s best interest to select an independent and unbiased expert to support the client’s case.

If an expert lacks independence, this lack of independence is highly likely to come to light during the arbitration. Certain experts have a reputation for being hired guns in the major construction arbitration community, and experienced arbitrators will often know who they are (and might even have worked on past cases in which they were the expert). Lawyers can also expose an expert’s lack of independence careful cross-examination and by looking at the expert’s past to identify potential conflicts of interest, conflicting past opinions and leanings towards one side or another, all of which can discovered through their publicly available credentials, publications, and any reported cases. It is thus important to conduct this research on your own before hiring an expert, so that you can anticipate and neutralize any potential perceived biases before the expert is engaged.

Briefing Experts. Properly briefing your expert witnesses at the outset is imperative to ensure the expert’s evidence is focused, exhaustive, authoritative, cost effective and submitted on time.

The instructions to the expert should contain all the relevant background information, the nature of the expertise required, the purpose of the expert’s report, a description of the matter(s) to be investigated and of the issues to be addressed, the statement(s) of case (if any), the witness statement(s) (if any), those documents which form part of disclosure and witness statements that are relevant to the report, the dates of any hearings, the deadlines for the exchange of experts’ reports, a plan for completing the report, and any other relevant deadlines.

Critically, in international and other arbitral proceedings, instructions to experts are not privileged and are often ordered to be disclosed. Accordingly, such instructions should never contain material which would be embarrassing or otherwise undermine the expert’s independence. It is also important to keep the expert’s evidence focused on only (a) the relevant issues and (b) subjects about which the expert is qualified to testify. It never goes well to ask an expert to provided evidence on legal issues or on issues which are not within the expert’s expertise. The expert must focus exclusively on the factual or technical issues within his or her expertise which underpin the legal case. Not only is there a danger that opinions outside of this scope will be excluded, but asking the expert to stretch is likely to undermine the expert’s credibility on the subjects for which he or she is qualified and erode the persuasiveness of the expert’s overall presentation.

Working with Experts Effectively in the Preparation of Their Reports and Testimony. In addition to issuing clear instructions from the start, the expert must work closely with the legal team and keep an ongoing dialogue throughout the arbitration. There should be a comprehensive “teach-in” at an early stage in the matter where the lawyers and the expert can identify key issues and relevant subjects. All the documentation and information requested by the experts should be provided to the expert as quickly and efficiently as possible (subject to lawyer review for relevance or privilege) and there must be regular communication and discussion on key issues and progress. In working with experts, it is important that the expert receive all relevant information—even information that may be potentially harmful to your position. No good comes of keeping information from the expert. First, the expert may have a deeper understanding of the potentially harmful evidence, so it is beneficial to share that information and obtain his or her views. Next, the expert cannot form credible opinions unless he or she receives all relevant information. It will be easy enough for the adversary to use the unsavory information in cross-examination; you do not want your expert to be surprised in that way. Relatedly, it will only serve to strengthen the expert’s evidence if the expert has been able to metabolize and consider “bad” evidence when forming his or her opinions. Also, it is only when the expert has complete information that he or she can suggest whether additional experts, information or factual development might be necessary to strengthen your case.

A good expert report should include a full curriculum vitae of the expert (anything hidden will be found out), the instructions in full, an executive summary, details of the individuals to whom the work has been delegated (and a statement that despite delegation, the expert has checked, understood and endorses all work undertaken by others to prepare the report), identify the sources of all the information relied upon, identify the methods followed, identify all the assumptions made where information is not available, address the specific issues identified in the instructions, and set out the expert’s conclusion directly and clearly.

Conclusion. Success in a construction arbitration will often fall on the strength of your expert evidence. Selecting the right experts and managing them efficiently will be critical. Equally, a thorough due diligence on your opponents’ experts and their reports will assist greatly in exposing unethical practices, unsubstantiated opinions and biased experts.