Whose Opinion Counts?

One droll definition of an expert is any person who lives at least 500 miles away. The Federal Rules of Evidence are a little more expansive. Rule 702 provides that an expert witness is: “a witness qualified as an expert by knowledge, skill, experience, training, or education ... .”

This definition is expansive and flexible enough to give parties a variety of options to fit any particular need. For example, if you need an expert on project scheduling, you may select a scheduling software engineer (knowledge) or a person with hands-on exposure to running construction projects (experience).

If you need an expert on labor productivity, you may select a university professor who has analyzed industry studies (education), or a person with no degree but who is adept at analyzing project data (training).

At the core of expert testimony is the need to give opinions concerning the facts of the case to aid the “trier of facts.” For a jury trial, the trier is the jury; for a non-jury trial or arbitration, the trier is the judge or arbitrator.

An expert provides opinion. Everybody has an opinion, according to an old expression, so what separates one expert opinion from any others?

Who qualifies?

The federal rules allow for “lay persons” opinions. Examples are varied in this area, and new restrictions have been imposed. However, it is acceptable for a witness who will be asked what he has seen or done, and has been not been qualified by the court as an expert, to give limited opinion testimony, such as “it was cold” or “the crane was slow.”

I have personally offered an electrical estimator as a witness to testify that the productivity of his company’s crews was 30 percent off. The electrical estimator in that case was not offered as an expert witness; he was merely giving his opinion about productivity from what he observed. On the other hand, I could have had him “qualified” as an expert even though he was an employee of a party to the lawsuit. The federal rules specifically permit an employee of a party to testify as an expert.

The rules do not require the expert to be an unbiased neutral. To the contrary, the federal rules even expect that the party’s attorney will be involved in drafting an expert’s report. Rule 26 (a)(2)B specifically “does not preclude counsel from providing assistance to experts in preparing reports.”

The qualification process in court or arbitration should sort out matters such as bias, extent of relevant experience and other factors that go to the weight to be given the testimony.

Credentials help, but are not a prerequisite. Consider this factor in your selection process. Does the person hold licenses, certificates or diplomas relating to the testimony? How many years of experience does he have? Has he been qualified as an expert before? And, most important, how convincing do you think this person will be?

An open question concerns experts who are called upon to testify on the law. Your first impression may be that experts should be limited to factual issues, and generally you would be correct. Normally, the judge decides matters of law.

However, there are instances where an expert may be qualified to give opinions on the National Electrical Code or National Building Code. These codes are adopted as the law and so, strictly speaking, it would be up to the judge to interpret them. After all, these codes are no less difficult than the Internal Revenue Code. Even so, some judges have allowed testimony on these quasi-legal interpretations by an expert.


Weird science is not allowed. This statement is not as fanciful as it may appear. There have actually been attempts to have expert testimony based on horoscopes and on phases of the moon.

In construction litigation, unique theories have been attempted to recover damages based on statistical inferences, industry surveys and other scientific-looking analyses, which may be wrong or inconclusive. One example applied a statistical model (a multivariable regression analysis) to “prove” a correlation between the number of drawing changes per month and loss of productivity.

The United States Supreme Court has set down some guidelines to be used for such expert testimony. In Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993), the court ruled that expert testimony must be supported by accepted methodology that is based on substantial scientific, technical or other specialized knowledge.

Roughly translated, the expert should be able to reference similar studies or methods that have been available to criticism by other specialists in that field.

In addition, the expert’s report must detail the bases for the opinions “in a comprehensive scientific manner.” Figueroa v. Simplicity Plan de Puerto Rico, 267 F. Supp. 2d 161 (D.P.R. 2003).

What happened to the hearsay rule?

Everyone seems to know there is a rule against hearsay testimony, but few people, including lawyers, know exactly what hearsay is. To make matters very complicated, there are a lot of exceptions to the rule so that hearsay can be allowed in court.

An example of hearsay would be a foreman testifying that one of the electricians told him of a conversation the electrician had with a supplier. It is hearsay because the foreman’s information from the supplier was second-hand, filtered through the electrician.

Of course, most businesses, and especially construction jobs, operate on hearsay.

“Did you tell the crane company I need the equipment tomorrow?”

“Yes, I did.”

“And what did he say?”

“He said it would be here.”

Courts disallow hearsay evidence on the basis that the person with the important information—in the above example, the supplier—is not a witness and therefore cannot be examined under oath about what he said and whether his statements were true.

Expert witnesses, on the other hand, testify almost exclusively from hearsay evidence. They review job correspondence, daily reports and purchase orders and draw conclusions from this data.

Their opinions may also be drawn from interviews with individuals who will never testify. Most of this information is reviewed or obtained after the job is over.

The explanation for allowing experts to give hearsay testimony is for another article, but it is helpful for you to know that the expert’s credibility can be attacked if he is not given full access to all data pertinent to his inquiry.

On a positive note, the expert’s hearsay testimony can substitute for your calling numerous fact witnesses. This one-versus-many consideration also allows the expert to present summaries, such as man-hours per day, percent complete per month, turn-around cycles for shop drawings and other complications.

Use the information in this article to evaluate whether a particular expert is the right person to assist you at a trial or arbitration. Because any dispute may end up in court, evaluate the claims consultants you hire as well, as they may be called on to be your experts in a lawsuit. EC

ITTIG, of Ittig & Ittig, P.C., in Washington, D.C., specializes in construction law. He can be contacted at 202.387.5508, USBuildlaw@aol.com or www.ittig-ittig.com.


About the Author

Gerard W. Ittig

Legal Columnist
Gerard Ittig, of Ittig & Ittig, P.C., in Washington, D.C., specializes in construction law. He can be contacted at 202.387.5508, USBuildlaw@aol.com or www.ittig-ittig.com .

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