I entered into the world of expert witnesses about 20 years ago when the exterior insulation and finish system (EIFS) problems started to rear their ugly heads.
I quickly realized the need to learn more about EIFS, stucco and moisture problems in homes and buildings. I attended several seminars and classes that, at the time, were considered to offer the best education related to EIFS, stucco and moisture in structures. After I gained knowledge and offered specialized inspections in my market, I became known as one of very few people with expert knowledge of these specialized systems. One thing led to another and I began working with attorneys in several southern states as an expert on failing EIFS systems.
EIFS and moisture issues are still around, but the demand for expert witnesses for EIFS lawsuits has declined. This is because large class-action settlements were promulgated by EIFS manufacturers in an attempt to stem the thousands of individual lawsuits. However, this does not mean that my litigation consultant and expert witness business declined. I remain busy with litigation work that involves residential construction defects, home inspector cases, and issues related to EIFS, stucco and adhered manufactured stone veneer (AMSV).
Become an Expert
One of the best things I did in my home inspector career was to decide to specialize in EIFS inspections, and to invest in the education and spend the time to become an expert in this product. By doing this, I had a special niche in my marketplace and became known as the “go-to guy” for anything related to EIFS, stucco or moisture problems in a home. Fast forward 20 years, and the same is true today.
Entering the expert witness arena is not for those who are faint-hearted, have short tempers or tend to have an abrasive demeanor. As an expert witness, you need to present a professional appearance, and exert an overall image that you are confident and knowledgeable of the subject.
Personally, I find expert witness work to be rewarding from the standpoint that I know I attempt to help my client or team to the best of my ability, and that I present the facts involved in my part of the case in a clear and concise manner. Expert witness work also can be financially rewarding, which is one of the main reasons that many consider getting into this line of work.
Select a Specialization
The first item on the list to become an expert is to decide what you want to be an expert in. Examine your skill sets. Do you have any work history that could turn you into an expert in some area? What did you do before you were a home inspector? Were you in the landscaping business? If so, I bet you know about irrigation systems and drainage around homes. Were you a roofing contractor? This might be the perfect time for you to use that knowledge, polish up those skill sets and become a roof expert. The list can go on and on—it is only limited by your drive to succeed.
Next, you need to polish up your education related to your chosen specialty. This step requires you to invest in additional training and most likely some travel to attend educational events that pertain to your particular specialty. As a result, you will have the knowledge and skills that very few will have, and this will be your new niche or a unique selling point (USP) for you and your business.
Market Your Expertise
Now that you have a new or increased wealth of knowledge, you need to do something with it! Start by listing your specialty on your business website. If you do not have a website, you must create one. You cannot be in business today without having a good website. Websites are the “Yellow Pages” of today! When attorneys are looking for experts, their first step is usually to ask around their office or inquire with other attorneys, and their second step is to search the internet. This is where having a website pays off and may earn you some expert witness business. If your business does not show up on an internet search engine like Google, then you are not in business!
Qualify as an Official Expert Witness
I’ve been explaining how to become an expert witness, but truth be known, you will not be considered an “expert” until an attorney presents you to the court and the court declares you to be an expert. Rule 702 of the Federal Rules of Evidence outlines the basis for an expert’s opinion:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
- the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied the principles and methods to the facts of the case
Voir dire is the procedure by which an expert witness is qualified. This consists of both a direct examination by the person offering the witness as an expert (the attorney) and a cross-examination. Most attorneys begin by introducing the expert to the judge or jury, and reviewing the expert’s resume to establish the expert as having an extensive background in education and work experience in the subject matter. Expert witnesses need to have a scope of expertise and cannot be just “general” experts. In recent years, in an attempt to speed up trials, the voir dire process often is performed before the trial date during a special hearing.
Designate Your Expertise
To keep everyone straight, I prefer to consider myself a litigation consultant until I have been declared an expert in the case. Being a litigation consultant also offers a little more freedom to me and the attorney with whom I am working. Under normal circumstances, most of the work that I perform as a litigation consultant is privileged and not discoverable. This stipulation can be very important, depending on the case I am working on; however, all of this changes once I have been declared an expert.
Consultant: Consultants do not have to be designated. A person can retain the consultant for their advice and guidance and to obtain their confidentiality. Consultants cannot be deposed by the opposing attorney and cannot be retained by them, either. It is not unheard of for an attorney to retain a number of well-known experts in a particular field as consultants if the client can fund the retainers.
Expert witness: An expert witness, on the other hand, needs to be designated. As a witness, the expert can be subpoenaed for deposition, they may be obligated to prepare reports and other discoverable materials and so forth. Although they still can perform most of the functions of a consultant, their level of confidentiality is tempered slightly by the fact that they may be compelled to provide certain information to the other side. Of course, the trade-off is that an expert witness can testify at trial in front of a judge or jurors and offer their opinions directly to the finders of fact.
Use Your Knowledge
Becoming an expert is not difficult, but it does require a specific knowledge base in addition to actual related experience. Many who enter the litigation support and expert witness fields are able to do so simply based on what they may have done in a prior profession. We all have special talents—you may be able to expound on yours to develop a profitable professional role as a litigation consultant and expert witness.
Scott Patterson has owned and operated a full-service property inspection and consulting firm since 1995. Since 1995, he has inspected over 9,000 single-family homes, as well as more than 1,800 EIFS-, stucco- AMSV-clad homes and buildings, along with hundreds of commercial buildings. His primary business is centered on residential and light commercial building inspections for individuals purchasing existing homes and commercial buildings. Scott offers litigation support on legal matters involving residential construction issues, home inspections, construction defect, and residential and commercial injury cases. Scott is the 2019 National ASHI President.