When a case hinges on technical, engineering matters, choosing an engineering expert witness may be critical to the success of that case. In many instances, an engineering expert can assist by:
- Analyzing technical case facts for the attorney and jurors
- Preparing a case specific engineering expert report supporting the legal issues
- Being deposed by opposing counsel
- Testifying at court in an effective manner
An expert witness as defined by the dictionary is “a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case.” This is an exception to the rule prohibiting giving opinions in trial, provided the engineering expert is qualified by his/her expertise, training and specific knowledge.
Civil Engineering – The Broadest Engineering Field
Civil Engineering is the broadest of the engineering fields. It deals with the creation and improvement of the community, the protection of the environment, providing facilities for living, industry and transportation, including large buildings, roads, bridges, canals, railroad lines, airports, water-supply systems, dams, irrigation, harbors, docks, aqueducts, tunnels, and other engineered constructions. The engineer verifies that all applicable rules and regulations are followed. The overall responsibility of the engineer as the project manager is to insure that the design plans are followed. The plans should have been designed using commonly accepted engineering standards and practices. The education and experience within these fields make the Engineer valuable when cases ask questions about the proper way this type of work should have been done. The Standard of Care for Engineering work is presented by an Engineering Expert Witness.
My firm has retained Keith several times to consult and/or testify in litigated property damage disputes. Keith is consistently professional and accessible, and provides the layered and nuanced expertise we need to fully prepare these matters for our clients. – Marcus Chatterton, Attorney
When trying to find a civil engineer to act as an expert witness, there are several factors that an attorney should consider.
12 Things You MUST Know When Selecting An Engineering Expert Witness
1. How much experience does the expert witness have? The experts experience, whether education or in the field, is the first important factor. It is important to your case for the expert to have relevant experience. The opposing side or the judge may challenge your expert’s qualifications if they so choose.
You wouldn’t want to waste yours or the courts valuable time with an expert who isn’t qualified. An inexperienced engineer hasn’t matured and will not have seen many different situations. Education alone does not make a good expert. Relevant on-the-job experience is also a must have requirement for an engineering expert.
2. What is the expert’s level of experience? Has the expert completed any training, licenses and/or certificates. If so, in what areas and what states? The second factor in choosing an expert is whether or not the expert is licensed and/or certified in the field in which they will give testimony.
Alabama’s Board of Licensure requires (and most other states do also) that an engineering expert is licensed to practice in the State in order to give expert witness testimony. Licensure as an engineer or land surveyor requires a certain level of education (Bachelors as a minimum) and at least 4 years of relevant experience before being able to sit for a Professional Exam.
The expert should be able to provide all types of licenses, certificates and the states he/she is licensed in. This will give your expert more credibility in court. There are also certifications that can be attained in different types of engineering work. For example, an engineer who routinely does floodplain consulting might obtain the necessary training and certification as a Certified Floodplain Manager.
3. Does the expert have any teaching or speaking experience? The third item to consider is does the expert have teaching and public speaking experience. This is useful because it shows the expert has knowledge of the industry and can speak in public. An expert will have to be able to speak in court effectively in the event the case goes to trial.
This skill is also relevant for preparing his/her report. The expert must be able to explain industry terms and information clearly. Some teaching experience is also helpful because the person is likely able to explain complex issues in simpler terms.
4. What area of engineering does the case involve? For a medical malpractice case you want a medical expert to testify. For an accident related to a bridge collapse you need a structural engineer. Flooding cases call for an Engineer with Hydraulics and Hydrology expertise.
For a construction accident you will need a civil engineer with construction experience. Choosing the wrong expert will make it much harder to meet your trial objectives. The engineer needs to be an expert in that area.
5. What is the expert’s area of expertise? Once you understand what type of engineer you need, next find out the area of expertise your potential expert works in. You will want to choose an expert that works in the field and is willing to assist you with your case. It is important to find an expert that is currently dealing with the industry on a regular basis. Just because a person is licensed as an engineer doesn’t mean they have expertise in all areas. The field of Civil Engineering is vast. Some of these areas are structural, sanitary/environmental (large and small systems), surveying, hydrology, hydraulics, land development, geotechnical, safety, construction management, etc.
6. What percentage does the expert testify for Plaintiffs and what percentage for the Defense? It is important that an expert have experience with both plaintiff and defendant cases. Too much on either side can be interpreted as being prejudiced toward plaintiffs or defendants. The expert, even though retained by one party, has a duty to provide professional opinions based on sound engineering judgment regardless of who is paying the fees.
7. What other legal support services does the expert offer? Do they consult as well as prepare reports? Will they testify in a deposition or in court? Find out what the expert is willing to do. Will they be able to work throughout all aspects of the case? Consider what you need for your case – do you need documents reviewed, research and a written report? Verify with your expert that they do all of these tasks.
Also, it’s important to give an expert witness enough time to review the case documents. Unreasonable deadlines sets you both up for failure.Does the expert give deposition and/or courtroom testimony? While the majority of cases don’t make it to court, you don’t want to have to switch experts in the middle of the case.
8. What is the experts current work load? If the expert is too busy to give your case the attention it deserves, your case will suffer. Deadlines should be discussed in advance and the expectations you have should be expressed in writing. If an expert report is required, the deadline for this report should also be specified. You should get ALL of the case materials to the expert as soon as possible to insure time is sufficient for the report preparation. Withholding information that might come out in a deposition or court will make the expert look bad, and hurt your case in the process.
9. Have any cases been lost due to the expert’s work being questioned? Have they ever been disqualified to testify? Another factor to consider is has a case been lost due to his/her work being questioned or being disqualified to testify. You will want to find an expert that can defend his/her answers by sound reasoning and evidence. For example, a safety engineer might use OSHA regulations as a resource. You wouldn’t want to retain an expert that doesn’t use the necessary resources at his/her disposal. Has the expert successfully stood up to a Daubert challenge? If not, you should ask them to answer questions for you that are likely to be asked in a Daubert challenge.
10. Does the expert have references? Some attorneys would like an expert who has been successful on several cases and some may want a new expert. You may want an expert that has references so you can verify the expert’s quality of work. Choosing a qualified expert, regardless of references, is important to your case.
11. Has the expert testified in a deposition or in court, and how many times? If an expert has testified in court or in a deposition it will be beneficial to your case. This will let you know the expert can explain technical terms publicly in both a deposition and in court and they will be more relaxed when your case goes that far.
12. What are the engineering expert’s rates? Finally, you will need to know what your expert charges for his/her time. Is there a different rate for deposition or courtroom testimony? A clear understanding with your expert on expert fees will prevent any problems at the time billing occurs. It is also true that an expert that charges properly has a clearer understanding of the scope of what he is expected to do in the case. The lowest hourly rate expert is not always the best. In closing, remember the words of Francois La Rochefoucauld
There is nothing more horrible than the murder of a beautiful theory by a brutal gang of facts.
Once you have chosen your expert, make sure that you listen to them and make sure you have a sound case from the experts opinion and that his opinion is based on sound engineering principles that can be plainly explained to a jury.