What is the role of an expert?
There is a common misconception that an expert witness is a "hired gun" brought in to make and argue a party's case before the courts or in arbitration. The role of the expert, in Canada, is to assist the court or arbitration in understanding technical issues that may not be addressed or adequately explained by the court through normal evidence.
When do you need to engage the expert?
As an expert, the Professional Quantity Surveyor (PQS) will examine the quantum of your claim or defence. In doing so the PQS may discard elements of your claim that are not directly attributable to the issue.
In construction disputes the issues usually revolve around quantity, cost, schedule or quality. In these matters the PQS can assist in quantifying the work, reviewing and vetting the actual costs, examining the schedule, and inspecting the quality of the work.
Engage the expert when or before engaging legal counsel or commencing an arbitration process. Because of the costs involved there is often a reluctance to engage the expert until the last possible moment. However, I have found that delaying is usually false economy. Several examples of this are:
Ø The general contractor who had a large overrun on concrete quantity which it had attributed to design changes and for which it was seeking compensation from the Owner. After spending considerable monies on legal fees, it retained the expert PQS to confirm the quantities, only to find that the reason for more than 90% of the overrun was due to errors in the original estimate, not design changes. The contractor had no claim.
Ø The lawyer being sued for $80,000 loss of profit by his client. After a settlement offer of $40,000 was turned down counsel engaged a PQS to review the alleged costs. The determination of the expert was that the loss was approximately $8,000. The courts awarded the Plaintiff the exact sum determined by the PQS.
Ø The client who, seeking to recover damages suffered due to a structural problem, submitted all of his costs to correct and repair the work. These costs included first class air fare, bar bills, and costs unrelated to the matter. The PQS reviewed the claim, identified the unrelated items which were subsequently removed from the claim, and the claim was adjusted accordingly.
In my experience, the earlier the PQS is engaged, the less likely it will be that you will have expended time and effort only to find that you have no claim, or that the claim has been over-stated or under-valued.
Evan Stregger, PQS, C.Arb. practices exclusively in dispute resolution and as an expert witness and in British Columbia and Ontario. The above information and opinion is provided for information only and does not replace the need for qualified legal advice.
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