Choosing an Expert Witness

In some legal cases an engineering expert witness may be critical to the success of your case. In many instances, an engineering expert can assist by:

  • Analyzing technical case facts
  • Preparing a case specific engineering expert report supporting the legal issues
  • Being deposed
  • Testifying at court

expert witnessAn expert witness as defined by the dictionary is a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert witness is qualified by evidence of his/her expertise, training and special knowledge. Civil engineers must use their education and training to plan, design, and oversee construction site projects in various industries. A civil engineer must analyze, design, plan and assist in the implementation of every step of a construction site project. The engineer verifies that all applicable rules and regulations are followed. The overall responsibility of the engineer as the project manager is to insure that the design plans are followed. The plans should have been designed using commonly accepted engineering standards and practices. A final report may be prepared that shows how the project was actually built as compared to the plans.  A civil engineer may also be in charge of verifying the safety regulations are being followed at all times during the project. Civil engineers are important to any construction project but can also be very important to any attorney that is need of an expert witness.

Finding an Expert Witness

When trying to find an engineer to act as an expert witness, there are several factors that any lawyer should consider. Below are “12 Things You MUST Know When Selecting An Engineering Expert Witness”:

1.     How many years of experience does the expert witness have? The expert’s experience, whether education or in the field, is the first important factor. It is important to your case for the expert witness to have relevant experience. The opposing side or the judge may feel your expert witness is qualified or not. You wouldn’t want to use valuable time for an expert who is not qualified. A novice engineer hasn’t had the time to mature and will probably not have seen many different project situations. Also, education alone is not a sign of a good expert witness. On-the-job experience should also be a requirement for an expert witness.

2.     What is the expert’s level of experience? Has the expert witness completed any training, licenses and/or certificates. If so, in what areas and what states? The second factor in choosing an expert is whether or not the expert has licenses and/or certifications in the field in which he/she will testify. If the government requires licenses (and most states do) it is important for your expert to have the necessary license. Licensure as an engineer requires a certain level of education (Bachelors as a minimum) and at least 4 years of relevant experience before being allowed to sit for a Professional Exam. The expert will be able to clarify all types of licenses, certificates and the states he/she is licensed in. This will give your expert witness more credibility in court. There are also certifications that can be attained in different types of engineering work. For example, an engineer who routinely does floodplain consulting might obtain the necessary training and certification as a Certified Floodplain Manager.

3.     Does the expert witness have any teaching or speaking experience? The third factor to consider is does your expert have teaching and speaking experience. This type of experience is useful because it shows the expert has knowledge of the industry and can speak in public. An expert witness will have to be able to publicly speak in the event that your case goes to trial. This skill is also relevant for preparing his/her report. The expert must be able to explain industry terms and information clearly. Some teaching experience is helpful in that teaching requires the expert witness to be able to explain complex issues.

4.     What is the area of law in which you need an expert witness to testify? The next factor in deciding on a specific expert is the area the expert will testify in. For a medical malpractice case you would want a medical expert to testify. For an accident related to a bridge collapsing you will need a structural engineer. For a construction accident you will need a civil engineer with construction experience. If you choose the wrong type of expert witness you will not be able to meet your objectives. Any engineer should be able to tell you what specific type of engineer and their area of expertise that you need for your case.

5.     What is the expert’s area of expertise? Once you understand what type of engineer you need, the next  factor to consider is the area of expertise your chosen expert works in. You will want to choose an expert witness that works in the field and is willing to assist you with your case. It is important to find an expert witness  that is currently dealing with the industry on a regular basis. Just because a person is licensed as an engineer doesn’t mean they have expertise in all areas. The field of Civil Engineering is vast. Some of these areas are structural, environmental (large and small systems), surveying, hydrology, hydraulics, land development, geotechnical, safety, construction management, etc.

6.     What is the percentage the expert has testified for Plaintiff? What percentage for the Defendant? The next factor in choosing an expert is the expert’s preference for working for the plaintiff or the defendant. It is important that an expert witness have experience with both plaintiff and defendant cases. Too much on one side can be interpreted as being prejudiced toward plaintiffs or defendants. The expert, even though retained by one party, has a duty to provide professional opinions based on sound engineering judgment regardless of who hired them.

7.     What services does the expert witness offer? Do they consult as well as prepare reports? Will they testify in a deposition or in court? Another factor to consider before choosing an expert witness is what services the expert provides. Consider what you need for your case – do you need documents reviewed, research and a written report? Verify with your expert that the necessary tasks can be completed. Also, it is important to give your expert witness enough time to review the material. Your expert will not be able to do a thorough job if the deadlines are unreasonable. Does the expert give deposition and/or courtroom testimony? While the majority of cases don’t make it to court, you don’t want to have to switch experts in the middle of the case.

8.    What is the experts current work load? If the expert witness is too busy to give your case the attention it deserves, your case will suffer. Deadlines should be discussed in detail and the expectations that you have should be expressed in writing. If an expert report is required, the deadline for this report should also be specified. You should get ALL of the case materials to the expert witness as soon as possible to insure time is sufficient for the report preparation.

9.     Have any cases been lost due to the expert’s work being questioned? Have they ever been disqualified to testify? Another factor to consider when choosing an expert witness is has a case been lost due to his/her work being questioned or being disqualified to testify. You will want to find an expert that can defend his/her answers by sound reasoning and evidence. For example, a safety engineer might use OSHA regulations  as a resource. You would not want to retain an expert that does not use the necessary resources at his/her disposal. Has the expert witness  successfully stood up to a Daubert challenge? If not, you should have them provide you answers to questions likely to be asked in a Daubert challenge.

10.  Does the expert witness have references? Some attorneys would like an expert witness who has been successful on several cases and some may want a new expert. You may want an expert witness that has references so you can verify the expert’s quality of work. Choosing a qualified expert regardless of references is important to your case.

11.  Has the expert witness testified in a deposition or in court? If so, how many times? If an expert witness has testified in court or in a deposition it will be beneficial to your case. This will let you know the expert witness can explain technical terms publicly. If you have an expert that has experience with depositions and court they will be more relaxed when your case goes that far.

12.  What are the engineering expert’s rates? Finally, you will need to know what your expert witness charges for his/her time. Is there a different rate for deposition or courtroom testimony? A clear understanding with your expert on expert fees will prevent any problems at the time billing occurs. It is also true that an expert that charges properly has a clearer understanding of the scope of what he is expected to do in the case. The lowest hourly rate expert is not always the best. In closing, remember the words of Francois La Rochefoucauld:

There is nothing more horrible than the murder of a beautiful theory by a brutal gang of facts.

Once you have chosen your expert, make sure that you listen to them and make sure you have a sound case from the experts opinion and that his opinion is based on sound engineering principles that can be plainly explained to a jury. orange line

“My firm has retained Keith several times to consult and/or testify in litigated property damage disputes. Keith is consistently professional and accessible, and provides the layered and nuanced expertise we need to fully prepare these matters for our clients.” – Marcus Chatterton, Attorney


Call Montgomery Land Surveying at (334) 625-9540 or fill out our contact form. If you are an Attorney or Legal Professional please Click Here to download J. Keith Maxwell’s Expert Witness CV.