It has been a while since the last post, due to moving the Lokimox offices and some cases being active. I recently concluded a case that enables details to be discussed, although I will avoid details to allow focusing on some specific topics. This edition is an introduction to The Engineering Expert and the Courts, which will require more than one post. This post will focus on an overview more than details.

Finding and Selecting the Engineering Expert

The hardest activity for most attorneys is finding an engineering expert with the knowledge, experience, and qualifications to meet the needs of your matter or case. There are many ways to find an engineering expert, with the most common being:

1. Referrals from other attorneys. The best source of referrals comes from an attorney who has worked with an engineering expert and will readily convey the good (or bad) of those with whom they have worked.

2. Organic search on the Internet. This is a good initial search option when there are no referrals, but it requires understanding what knowledge and qualifications are required for a case. Engineering has many non-overlapping specialties, licensure requirements, and certifications.  The most prominent results will be people who paid for placement rather than the most suitable expert.

3. Expert witness search/directory site. The expert directory search sites are “pay for placement” which places people who pay highest, although they are rarely as well qualified as the placement indicates.

4. Expert witness search agency. There are many of these sites on the Internet with more effective than others. The model historically used searches paid by the attorneys, and potential experts are returned. Recently, more of these sites are moving to a “man in the middle” or MITM where they mark up the expert services from 20% to 300%.

5. Expert witness agency/firm. These groups have lists of contractors they use with services provided as a MITM with markups from 20% to 300% or more. They also add more management services to the costs.

From an engineering expert perspective, my preference is to contract directly with the attorney or law form and avoid the MITM situation with zero added value while my least favored is as a contractor to an agency/firm.

Qualifying the Engineering Expert

Once an engineering expert is identified, the qualification should be straight forward and easily completed with a 10–30-minute voice or video call; I prefer video so your faces can be seen and the attorneys can see my communication style. During the video call, an overview of the case/matter should include general details and the attorney expectations. The engineering expert should ask questions to clarify any scope and quickly summarize what they would opine on the case. This is an opportunity for the attorney to determine if the engineering expert can meet the requirements of the attorney. An engineering expert must:

1. Have the necessary formal education in a discipline that includes the subject of the matter/case. Ideally, this should be a 4-year degree from an ABET for the USA or Engineers Canada for Canadian degrees.

2. Licensure in their home state (or province) and any other region relevant to the case. For the USA this means they should have an NCEES record to simplify mobility and ensure validation of their education.

3. At least ten years of progressive work experience in the relevant industry before independent expert testimony. Development of an engineering takes ten or more years with the first four gaining the minimum experience for licensure; the engineering expert needs to show growth and responsibility beyond this minimum.

4. Any relevant certifications beyond licensure to confirm their knowledge and skills.

5. Be an excellent communicator, both verbal and written, with the ability to simplify complex optics and articulate their opinion.

Working with the Expert

It is expected the qualifications of the engineering expert will be challenged once they are disclosed or after an initial report. A challenge is not a disqualification, and often experts will have multiple cases each with challenges pending a court ruling. Once I was not selected for a matter because of this even though the challenges were overruled within a week and my qualification as an expert was accepted by the courts; ironically one these cases went to trial shortly after this and the attorney with whom I was working won the cases as I watched the opposing counsel case collapse in real-time during my testimony.

An engineering expert needs information that can be readily analyzed. Attorneys have staff that can organize the data at a lower rate than the engineering expert, which is more efficient regarding time and cost. Regular communication helps keep focus and schedules; it is fairly common for an engineer to chase an interesting tangentially related topic, and time on those needs to be reduced. The approach I begin every matter or case is to start with up to five questions that must be answered to form an opinion. These may change and become a key part of the expert methodology.

Communication and provision of materials promptly is the most important, and both the attorney and engineering expert should have systems for electronically managing all materials with the necessary controls.

The Engineering Expert Report

The engineering expert report is usually the first major deliverable, and there are a number of rules affecting the disclosure of reports and any drafts. The general guidance is to never release a draft and discuss content verbally with the attorney – most important, though, is to follow the direction of the attorney on this! The engineering expert report will require a structure, methodology, and support for every conclusion. The writing style I use is similar to academic graduate school requirements except I prefer Chicago style with IEEE reference numbering. When using items provided by the attorney, use the Bates numbering to make it easier to locate related documents for deposition or testimony.

Deposition of the Engineering Expert

Engineers love to solve problems and explain things; the attorney needs to make sure the engineer limits their answer to the scope of the matter or case and the report. Once a question is answered briefly, stop talking. It is the role of deposing counsel to ask the right questions, and your only duty is to answer in the scope of your role and knowledge, not as a general expert for opposing counsel (even though they are often paying for the deposition). A deposition typically lasts up to 4 hours and can be stressful, and a break can be requested. Always dress for the venue; business-formal is always a good choice, but business casual is also acceptable; remember your goal is to project as an expert, and any heuristic will help.

Any attorney that can guide or train the engineering expert how to respond in deposition is time well spent. I have been fortunate with coaching from some skilled trial attorneys – and this paid off when one deposition lasted over 9 hours (including breaks).

Testimony of the Engineering Expert

The testimony will be the last step, and the attorney and engineering expert should know their materials and behaviors. The engineering expert needs to present as an expert It is the job of the attorney to question the expert, with the expert providing answers to the question and nothing more; any time a question is asked, take a few seconds to ensure there are no objections before speaking. If any objection occurs, say nothing until the judge rules. Always follow the instructions of the judge! As an expert, you are speaking to the jury or the judge. Speak slowly and make eye contact when answering, then return to the questioning attorney when you are done.

If you want to know more, please reach out to as at Lokimox through our web site a https://www.lokimox.com.

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The Engineering Expert, Attorneys, and the Court | LinkedIn