Bill Bordill in Construction Management Magazine: Who Can Be An Expert Witness?

In this Contract Clinic column in Construction Management Magazine, DeSimone Managing Principal Bill Bordill, an experienced adjudicator, expert witness, and mediator specializing in the construction industry, explains the risks of using an expert consultant as a subsequent expert witness in a formal construction dispute. This regular column aims to address common problems found in construction and disputes around the globe.

The Question:

Can we use the same consultant who advised us on a contractual risk as an expert witness in a formal dispute?

The Answer:

There are a variety of reasons for appointing a particular consultant to assist with a construction dispute. These might include their reputation in the market, specialist knowledge, or simply familiarity or an existing relationship of trust. You may initially be seeking an expert to advise on the merits of a case and which strategy to adopt. But the dispute may later need a formal resolution procedure to resolve it.

At that later stage, you will likely need an expert witness to provide an independent expert opinion to the court or tribunal. In England and Wales, for example, this is also known as a ‘Part 35 expert.’

To explain a little further: Lay people (without specialized training or knowledge) can act as a witness to a fact. They can say, for example, that they saw or heard something happen. However, they cannot, usually, give opinion evidence in a court or hearing. Only expert witnesses with specialist knowledge, recognized qualifications, or experience in a particular field are permitted to give opinion evidence about facts and matters within their field of expertise.

The role of the expert is usually, primarily to assist the court in understanding technical matters, matters that the court or other tribunal might not ordinarily be expected to tackle. Experts do this by providing opinion evidence.

To read Bill’s full answer to the question, ‘Can we use the same consultant who advised us on a contractual risk as an expert witness in a formal dispute’ - click here or download a pdf here.

Should you need an expert witness or advisor, please don’t hesitate to get in contact with us today.