• You are The Weakest Link… Goodbye

    Posted on January 16, 2009 by Lee Whitfield in Methodologies & Best Practices.

    Some time ago I appeared on Anne Robinson’s Weakest Link. I wouldn’t normally wish to appear on a TV game show but whilst playing the Weakest Link at home with my family I became so adept at winning that they suggested I try my luck on the real gameshow.

    Appearing on the Weakest Link was quite nerve wracking. Not because of the redoubtable Anne Robinson, but because I did not wish to appear stupid to a national TV audience. I was also determined not to make the “walk of shame” at the end of round one only to see a professional dog walker from Purley go on to win the cash.

    I didn’t win and I don’t expect you to believe this, but I actually knew the answers to everyone else’s questions.

    So, has my moment of TV fame made any impact on my Expert Witness role? Well, it has actually. I learned some valuable lessons during filming that I won’t forget quickly, such as:

    • Don’t submit yourself for questioning unless you know the topic.
    • Don’t guess the answer, it is probably going to be wrong.
    • Don’t shrivel under the withering gaze of a dominant questioner, answer quickly, boldly and with conviction.

    An Expert should always know his Topic

    A quantum expert is expected to have an abundant knowledge of construction methods and the measurement thereof. They will understand the original contracted scope of work, the site application of the materials in use and quantities required to fulfil that scope. Finally, they will know how the contract deals with the evaluation of changes to the works.

    Likewise, a planning expert will not only know how to manipulate planning software, but they will be experienced and practical. They will understand the processes of construction and how long an activity should take. The forensic expert will also know how the works should have been logically sequenced. Armed with this knowledge they can provide a tribunal with a fact based analyses.

    It all sounds so obvious and simple but there are still many Expert Witnesses who fail to fulfil the basic criteria set out above.

    On an engineering project that seriously overran the programme, the Contractors Planning Expert Witness accepted that the Contractor’s extension of time claim was correct, even though it sought an extension of time that took planned completion months beyond the actual completion date.

    Disregarding strenuous arguments from the tribunal explaining the futility of such an expert finding, and despite being referred to earlier cases and learned academic texts to the contrary, the expert was immovable. In cross examination the expert faced the accusation that his findings were wholly “theoretical” and that as a matter of record the events did not happen at the times shown on his theoretical analysis. The Expert refused move from his stated position and a chance to narrow the issues was lost, as was the Contractor’s case.

    Experts should not guess

    Cardinal Wolsey said “A man may believe what he will, but he should believe what he ought”. In essence experts are allowed to have an opinion but that opinion should not ignore the evidence. An Expert’s opinion should only be constructed under strict criteria, namely:

    • It should be on a matter upon which they are informed
    • It should be on a matter where they are experienced
    • It should be on a matter upon which they are qualified to opine
    • It should always be based upon available facts, where these are available
    • If contemporaneous facts are not available any published data relied upon must be from an reputable and reliable source
    • Where it is a best estimate or guess, this should be clearly noted

    In an arbitration on an overseas power project the Contractor’s expert was unable to verify the price of the Contractor’s bulk materials and so rather than carry out a measure of installed works the expert made the assumption that the total weights of pipeline materials delivered were installed. He applied an estimating rate and labour norms to the total delivered weights and valued the work accordingly.

    Under detailed cross examination it was disclosed that the Contractor’s expert had not been able to find accurate weights for the numerous valves delivered and so he had allocated them into columns of “less than 2 kg”, “2kg to 10kg” and “10kg to 20kg”, making the assumption that every valve in each column was equal to the maximum weight in the column heading ie. 2kg, 10kg and 20kg respectively. This guess proved to be completely wrong with many valves being only 30% of that allowed.

    This was a wholly avoidable error as the necessary valve weight information was available on the internet, just a few mouse clicks away.

    Guessing isn’t acceptable for an expert and if experts are asked to give an educated guess then they should make it clear that their answer is an approximation based on experience.

    Experts should be sure of their opinions

    When an expert has carried out his research thoroughly, has found sound evidence upon which to rely and has then formulated his honestly held opinion based on his experience, he should be better placed than anyone else to influence the tribunal.

    Advocates, no matter how skilled and informed, cannot know the Expert’s field better than the expert, yet they sometimes convince experts that they do. If the Expert has prepared properly he should know the answers to all relevant and important questions and then he can safely confess to the tribunal that he does not know the answer to irrelevant questions.

    Perhaps because of nerves, or maybe due to lack of preparation, experts are occasionally knocked off course by aggressive questioning. Experts must remember that forming an opinion is only a small part of the expert’s job, defending his opinion in the face of cross examination is potentially the more important part.

    A short while ago I watched as experienced counsel took an expert to task on his report. The expert had not done all of his own research and soon became nervous. Counsel smelled blood and moved up a gear. The expert, stammered and shook, soon his evidence collapsed completely. Later when the expert saw the transcripts he was shocked, he simply could not remember agreeing that the opposing expert’s view was probably more prescient than his own.

    Facing experienced counsel in cross examination is difficult, but the expert should remember that on the issues in question, he should be better informed about his report than opposing counsel. Firm, bold answers will help to unsettle the cross examiner who is always anxious to avoid reinforcing the opposing expert’s opinion.

    Conclusion

    Choosing an expert can be tricky, will they do the research, can you trust them not to guess, will they fold under hostile questioning? Only time will tell unless you choose wisely from the ranks of experienced experts who have been there done it and proudly wear the tee shirt.

    As for the Weakest Link, was Anne Robinson scarier than a QC, not really. In hindsight it was fun and if you don’t believe me and you live in Purley, ask you local professional dog walker.

    Jeffery Whitfield LLB, FRICS, MCIArb, MAE is an expert witness and forensic consultant in the field of construction.  He is a partner at EC Harris.

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