ConstructionPro Week, Volume: Construction Advisor Today - Issue: 144 - 02/03/2012

The Misuse of Expert Opinion

By Bruce Jervis


Expert witnesses frequently have a lot to offer. Their specialized expertise can assist the finder of fact, be it judge, jury or administrative board, in understanding factual evidence or resolving a fact that is in question. But expert testimony can also be misused.


In a recent federal case, the government attempted to introduce the testimony and report of an expert regarding the foreseeability of a cost overrun. The individual expert had an impressive array of credentials, including academic degrees and professional licenses. There was no question regarding the individual’s qualifications.


Unfortunately, the government was attempting to use the expert opinion in seeking a ruling on a matter which was within the competence and understanding of the fact finder. No expert opinion was required. And expert opinion under these circumstances can improperly influence a factual finding. The testimony and the report were excluded from admission into evidence.


Have you seen expert opinion used in inappropriate circumstances? Does the opinion of a highly credentialed expert sometimes dazzle the fact finder and alter what should be a common sense determination? And if expert opinion is going to be allowed, doesn’t it force the other party to bring in an expensive expert of their own? I welcome your comments.

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Interesting write-up.
After performing cause and origin inspections and reporting for 7 years and litigation support on the same as an expert, you can find a licensed individual to support either side in a claim or case. and occasionally these 'players' change sides in an effort to be paid (when on prevailing side).

I find it odd that we confusing "opinion" with "fact" , they are not the same. For example, if an expert opinon states that one pound of pressure is equal to 4 inches of water, this is not correct, the "fact" is that 1 pound is equal to .195 inches. A good expert can proof that. This should discredit the expert as his opinions are not as expert. A good expert knows the facts, and arrives at opinions he can support in part based on certain facts.

Because constrcution litigation is based a lot on opinions, experts are valuable, and certainly not all are opinions are good or even valid. My advice, know your facts first.

I have seen just the opposite. OK, a few comments. I have served as an expert witness a number of times.

Construction arbitration and mediation often has decision makers who really don't know or understand the technical issues of a particular case. They need someone to separate the causes from the symptoms. And that someone needs to be there to answer questions so that the decision maker can get educated in a hurry.

A licensed professional engineer when their render an opinion, is bound by a cannon of ethics (and state laws) to be fair and factual. That is why a PE's professional opinion is allowed to be interpreted as "fact."

Some PE's and even more "expert consultants" need to be held accountable for stretching the truth. Because this happens often in most places were experts render opinions there is the ability to perform cross examination and to enter rebuttal testimony.

I have seen witnesses become very uncomfortable, when they realize that what seemed like a statement of fact, really became a question of their knowledge and credibility based on faulty assumptions they are forced to admit.

Yes, experts are expensive, but usually have much lower billing rates than the attorneys who spend far more hours on the case and might have to educate themselves (at higher billing rates) to adequately explain the facts, red herring issues, and key assumptions to the arbitrator or mediator.





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