Friday, 15 July 2011

Trying the Expert

As many practitioners know, disputes rarely go the distance limiting opportunities for expert witnesses to speak before a tribunal. For over 2 decades it has been my experience that well presented evidence helps to bring disputes to a close without the need for a hearing. But recently I found myself presenting evidence under cross-examination in the Technology and Construction Court twice in quick succession.

The first dispute arose out of deficiencies in underpinning and other works carried out in breach of a party wall award. The second was a dispute over the quality of built work - mostly various pavements.
In each case, I, an architect, was ranged against engineers. In both trials the opposing barristers sought to dismiss my evidence not on its merit but on the presumption that an architect is no expert in building technology. Some may suppose architects do no more than visualise concepts (or ‘colouring-in’ as some colleagues put it) but I was more than happy to be put to the test and demonstrate that we know whereof we speak.

The first hearing quickly lead to my standing in the witness box under a barrage of innuendo (thinly veiled as questions) from a surveyor-turned-barrister who sought to question my worth rather than my evidence and to persuade the Court to prefer the reported opinion of an absent engineer to any contrary views expressed by a mere architect. He sought for a whole day to disparage my honesty, skill and impartiality. Having served as the grinding wheel to this blunt cross-examination on the first day, I returned the following morning to hear the judge dismiss the surveyor-come-barrister's submissions, acknowledge the assistance my authoritative and honest evidence provided to the court and appoint me to decide the acceptability of the work done in discharge of the award then given of specific performance.
The second case opened with experts, chaperoned by barristers, manoeuvring for position in the swirling snow while conducting the Judge around the supposed defects. In the main the issues to be decided turned on which of the conflicting expert evidence would prove the more compelling and the following cross-examinations focussed on each expert’s credibility.
The first ‘expert’ engineer was shown to be incompetent in the drafting of his report, to have formed considered opinions on the results of tests before receiving them, to have withheld information which was relevant to the views he expressed and to have made false statements in court.
It was my turn next. The first barrister to cross-examine opened with so simple a question I could not immediately answer – “what do you know about concrete?”.  What do you say to a question which is so open?  He jumped on my hesitation and hammered on to propose that I was no more expert than a DIY enthusiast who had laid a path.  Fortunately he gave me an opening in asserting that I must have anticipated such a question and should have prepared for it.
Still on the stand the following day I referred back to this criticism and enquired if, now better prepared, I might respond in fuller detail.  With the Judge’s ready agreement I numbered the many similar investigations I had performed and referred him to the RIBA’s publication on defects, “Well Built”, which I wrote at their request, and quoted the IStructE’s website’s hearty recommendation of this book to any member of a design team whether a recent graduate or more senior practitioner. I closed by drawing attention to my book’s treatment of how concrete is made, how it works and most significantly how typically it fails.
Both hearings are over and in both cases the courts found in my clients' favour showing that honest expertise can withstand interrogation and help achieve justice.

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