Forensic engineering expert witnesses – the linchpin in construction disputes
The forensic engineering expert witness is the linchpin in creating defensible arguments in construction-related disputes, according to a recent thought piece from HKA director Ed Poon.
Ed Poon, director of Canadian forensic operations at the risk and disputes consultancy, says expert witnesses aim to provide objective, evidence-based insights rooted in technical expertise, systems thinking, and scientific analysis.
A forensic engineer will firstly examine physical evidence, documentation, and site conditions – diving deep into technical detail to suss out the root cause of a failure.
Veteran forensic engineers will draw on system-level understanding, which is critical because modern construction projects are a web of interconnected systems. A bigger picture perspective of how technical components affect one another will result in a stronger, more defensible opinion.
Next, they will perform testing, simulations, and calculations to validate hypotheses. For example, a forensic engineer might use computer simulations to replicate a mechanical failure and detect the exact point of malfunction.
Finally, the forensic engineer must translate analysis into precise, compelling, and understandable testimony. They will have to explain complex issues in lay terms and provide an appropriate level of technical evidence that is easily understood.
Poon says there are three factors that make someone the right expert for a case.
The first is a broad base of experience – understanding the ins and outs of a larger building system and being able to connect the dots across disciplines to uncover the root cause.
Second is an ability to properly strategize for cases, including operating in alignment with effective legal strategy and communicating clearly in line with that direction.
Third is maintaining independence and objectivity. An expert witness’ reputation for integrity and credibility will carry significant weight in dispute proceedings, Poon says.
Poon also highlights several pitfalls that could create challenges in building a strong case.
One is failing to document all evidence and explaining why it was included or excluded in analysis. Omitting evidence might enable opposing counsel to suggest bias in the analysis.
Evidence must also be both clear and specific, and points should be illustrated clearly and cite specific evidence from documents. Providing tables and charts can further help create a clear, cumulative picture.
Experts also need to meticulously cite documents in their reports; that way, if opposing counsel argues a conclusion is not well-supported, the expert can quickly reference relevant evidence and refute the claims.
“Construction claims and disputes demand the truth – and a clear, defensible opinion that makes the truth indisputable,” the HKA director concludes. “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.”
