The Engineer as Expert Witness: (By: Mr. Sujoy Mitra, Amity University)

All of the foregoing were accomplished with the assumption that the forensic engineer may eventually testify as an expert witness in legal proceedings he details of the investigation, the gathering of data, the review of Pertinent documents, the evaluation of data, and the conclusions and opinions developed by the forensic engineer are all undertaken with the view that the forensic engineer would eventually be sworn to give testimony in a court of law, in arbitration proceedings, or in other legal forums where direct testimony will be presented and the expert witness will be subject to cross-examination.

While lawyers have long estimated how few cases actually reach trial, the extensive "1983 Civil Litigation Research Project" of the University of Wisconsin Law School CLRP confirmed from empirical data that 90% of all citizen disputes were resolved by settlement without litigation. [Pavalon 1987J

In this writer's practice as a forensic engineer over the past 38 years, he has found that less than 10% of the cases in which he was involved ever reached the trial or arbitration stage. In more recent experi­ence over the past 4 years, this writer has been retained as a forensic engineer in 62 cases and in this total caseload he has given testimony as an expert witness on two occasions in courts of law and in two arbitration hearings. This is about 6% of his caseload but it is acknowledged that some of the ongoing cases may eventually require expert witness testimony; however, the greatest percentage of disputes going to trial or arbitration are settled between the parties prior to ever reaching that stage.

Nevertheless in the life of every forensic engineer there will come a time when that individual will take his place on the witness stand and present expert testimony on the findings of the investigation. It is the purpose of this chapter to describe the posture of the forensic engineer when that individual becomes an expert witness.

This is concerned with the resolution of conflicts in the construction industry by the conventional litigation procedures in courts of law and the role that the forensic engineer plays in the resolution of such conflicts

Forensic engineer will have completed the investigation and if and f an engineering report was rendered, that report will have been distributed to the opposing attorneys. If a report was not prepared, the essence of the forensic engineer's findings will have been explained in detail to the client.

On cross-examination, opposing attorney could make the inference the report was not solely the work product of the forensic engineer that his or her findings may have been influenced by the attorney client.

Interrogatories:

As the opposing parties prepare for trial, questions are asked of each other by the attorneys with responses to be furnished as mandated by court order. Interrogatories are a part of the discovery proceedings prior to trial.

It is the purpose of interrogatories to try to ascertain, the controversy and to extract as much informa­tion as possible as to events, sources of data, names of individuals who have knowledge of the events that led to the dispute, to identify potential expert witnesses and to try to obtain the opinions of such experts.

The forensic professional can be of assistance to the attorney client in the preparati9n of questions to be asked.

In a similar manner, the forensic engineer can assist the attorney client in preparing answers to interrogatories based

 Discovery proceedings, such as interrogatories, are common in the usual pretrial procedure for litigation in courts.

TRIAL OR ARBITRATION PREPARATION:

Throughout the following discussion, the term trial refers to the court system but the same procedure can be utilized in arbitration proceedings.

The expert may have prepared an engineering report pertaining to his or her findings and opinions. exhibits contained therin should be prepared to be intro­duced as evidence in the trial during direct examination of the witnesses. If the exhibits were originally of small size, and if pertinent photographs were used in the report, they should be enlarged such that they can be observable by the jury, the judge, and/or the arbitrators

In a similar manner the forensic engineer should confer with the attorney client on the questions anticipated by the opposing attorney in cross-examination and both the expert and the attorney client should evaluate the expert's responses to those questions.

THE TRIAL:

Frequently a settlement is reached between the parties before the trial commencesT1iis may be the result of a pretrial conference with the judge, where the justice essentially acts as a mediator in trying to in­duce tile parties to settle without going to trial. Parties that it would be disadvantageous to them to embark on a possibly long and costly confrontation in court, leading to proposal of a settlement.

As often happens, the trial or arbitration may begin and, when an attorney nears the testimony of the opposing expert, the attorney may call for a settlement conference. It has been previously recited that only about 10% of the cases eventually go to trial or to arbitration.

A trial date is set in the appropriate court and all parties prepare fo~ the tria]. owever, delays in trial commencement are frequent. The assigned ju ge may have underestimated the time that has been tahn to conclude a prior case, or attorneys or witnesses are not available because of legitimate schedule conflicts, and the attorneys petition the court to delay the trial date.

Similarly and possibly to a greater extent, the scheduled date for the commencement of arbitration hearings is postponed because one or more of the arbitrators.

DIRECT EXAMINATION:

The expert has taken the witness chair. The expert is sworn by the clerk of the court and direct examination by the attorney client commences. Several points should be noted here prior to and during the expert's testimony.

The witness should dress conservatively and should display the aura of a professional. The witness should speak clearly and concisely and answer directly the questions asked by the attorney client, the opposing attorney, and, on occasion, the judge Although the questions wi1l De pose by the attorneys, if the trial is by jury.

 Always avoid an argument with the opposing attorney although that individual may try to "rattle" the witness by adopting a demeaning manner toward the witness to provoke an argumentative situation the witness must always "keep cool" and respond as a professional. Remem­ber, the witness is the expert, not the opposing attorney.

The initial purpose in this examination is to qualify the witness to the court as an expert until such time that the witness is so qualified as an expert.

 After the witness properly responds to the attorney client's questions, he attorney will then move to have the witness qualified as an expert. Lie opposing attorney may request a voir dire of the witness, which is basically a cross-examination on the witness' credentials, with the hope that the opposing attorney can prevent the forensic engineer from being qualified as an expert

At that point in the direct examination when the expert witness' testimony is to refer to exhibits, the attorney client will introduce these for identification the opposing attorney may then voir dire for the purpose of not allowing the exhibits into evidence. If this endeavor is successful, the witness may no longer testify as to that exhibit. If the court overrules the opposing attorney's objection, the direct examination continues.

The expert should have full knowledge of the hypothetical questions to be asked and he or she should determine responses to these inquiries.

When the basis for an opinion by the expert witness has been firmly established through direct examination, the attorney client will ask the witness to give an opinion on the evidence and facts presented

The witness becomes a teacher. The witness will take all the time that is needed to explain, in simple language.

A few points to remember during direct examination:

The witness may use notes and data brought to the witness stand but the witness should refrain from reading from such data.

The data should be used only to recall memory as to dates, numbers, and other pertinent information that will be used in testimony. Reading from such notes and data could present a problem if the opposing attorney raises an objection and requests to see these documents; or they may be requested by the opposing attorney during cross-examination. The docu­ments could contain information that should not be in the hands of the opposing attorney. This writer generally uses a set of dates and numbers on a plain sheet of paper that he has brought with him to the witness stand. This brief information is the only material that the witness should have while providing testimony. However, at the time that exhibits are' entered into evidence, the witness may freely have these exhibits during testimony.

CROSS-EXAMINATION:

Although the expert witness has had all the time that was needed to make a detailed presentation during direct examination, the forensic engineer now faces the fact that most, if not all, of the testimony will be challenged by the opposing attorneys it is often said that cross-examination "Separates the men and women from 'the boys and girls."

The opposing attorney will do everything possible to discredit the testimony of the expert witness. An attempt will be made to have the witness admit uncertainty of specific facts, that the analysis was incorrect that assumptions were improper, that the witness did not have sufficient educational and practice background to properly analyze the controversy, and that opinions were invalid.

The opposing attorney will do this by asking pointed questions of the witness. The attorney may read from the witness' prior deposition testimony to develop conflicts in the expert's testimony. On occasions, the attorney will badger the witness, although this tactic will elicit an objection from the attorney client, which may be sustained by the court.

A good opposing attorney will tend to "put on a show" to impress the judge and the jury that the testimony presented by the expert witness is invalid. This procedure will be used to discredit the witness' testimony in the opposing attorney's final summation.

The expert witness should always refrain from being argumenta­tive with the opposing attorney and should consistently display a profes­sional attitude in responses to questions.

The following are some guidelines for the expert witness during cross-examination:

The witness should answer questions briefly without elaboration. If the witness does not know the answer to a question or does not understand a question, the witness should so state.

The attorney client raises an objection, the witness should not respond to a question until a ruling from the court is obtained.

The expert should not rush responses but should think clearly before answering the questions of the opposing attorney. The expert witness, a professional, should not get "rattled." This writer always advises that witnesses "keep their cool."

'The witness should not be concerned about misleading impres­sions that may have been created in responses to questions. These usually can be clarified on redirect examination by the attorney client.

Occasionally, the witness may be asked if he or she has been "paid for the testimony. The witness should always respond to such questions by stating that a fee has been paid for the services performed, and will be paid for the expert's presence in court. If asked the amount of the fee or the basis for the charges, the witness should always answer truthfully and directly.

With respect to the last point, the forensic engineer should never be engaged in a case where the fee is determined by the outcome of the litigation. This is commonly referred to as a contingency fee and, although it is frequently used in the legal profession, it is inappropriate for the engagement of a forensic engineer. The attorneys in the case are advocates for their clients. The forensic engineer is not. The expert has arrived at an opinion based on facts and should always be unbiased with respect to the issues of the case. Advocacy should always be avoided by the expert and this impression should be clearly portrayed to the judge and the jury.

REDIRECT AND RE-CROSS EXAMINATION:

At the conclusion of the cross-examination, the attorney client will resume questioning the witness, primarily to enable the expert to clarify responses to the questions raised by the opposing attorney during cross-examinationThe areas pursued by the attorney client usually will be on the same lines as developed during direct examination and on subject matter raised during cross-examination. If new subject matter is brought up by the attorney client that was not covered in the direct or cross-examination, objections raised by the opposing attorney may be sustained by the court.

After redirect examination, in re-cross-examination the opposing attorney may wish to challenge the witness' responses in redirect examina­tion, in a further effort to discredit the expert's testimonyThe posture taken by the witness should be similar to that exhibited during cross-examination.

The redirect and re-cross-examinations may continue by the attorney client and the opposing attorney, respectively, until no further questions are asked of the witness and the witness is asked by the judge to step down from the witness chair.

EXPERTS PRESENT DURING TESTIMONY OF OPPOSING EXPERTS:

Some courts will permit the expert who will testify or has, testified to be present in the courtroom during the testimony offered I experts retained by the opposing attorney. If this is permitted before the expert testifies, this will enable the expert to ascertain the nature of. The technical testimony introduced by the opposing side and also may perm the witness to discuss that testimony with the attorney client during recess. The opportunity may exist to develop questions for the expert· contradict the testimony offered by the opposition.

Frequently, some jurisdictions do not permit the expert to I present in the courtroom during the testimony of other witnesses in that event, during recess, the attorney client can discuss with the expert outside of the courtroom the testimony that has been offered by others In addition the attorney client can develop with the expert additional questions the, will be asked of the witness on direct examination. If the opposing testimony is already in progress, the expert can advise the attorney client on pursuing a line of questioning in cross-examination

Some jurisdictions even go beyond forbidding the presence of expert in the courtroom

REFERENCE DOCUMENTS:

The Inter professional Council on Environmental Design ICE has recently adopted the Recommended Practices for Design Profession Engaged as Experts in the Resolution of Construction Industry Dispu1 originally proposed by ASFE ICED 1988

Another document will be published in 1989 by the American Society of Civil Engineers through its Technical Council on Forensic Engineering. This document, Guidelines for Failure Investigation.

An excellent publication is one produced by ASFE, Expert:

Guide to orensic Engineering and Services as an Expert Witness AS 1985

CONCLUSION:

In conclusion, this writer offers some final thoughts in testifying as an expert witness:

·        Do a thorough investigation.

·        Be convinced of the facts obtained.

·        Keep the attorney client appraised of the forensic engineer's ". findings

·        Do intensive preparation for testimony at deposition, trial, or arbitration.

·        As an expert on the witness stand, always act in a professional manner.

·        Be a "teacher" in presenting testimony before a judge, a jury, or the arbitrators.

As an expert witness, be "believable."

Reference:

1)     Forensic Engineering: Carper L. K, CRC Press, 1998

2)     www.google.com/forensic+engineering +witness/203/2008

3)     www.wikipedia.org/expert+forensic/32/2001