The construction industry is more and more seeking alternatives to customary forms of litigation. Small wonder: litigation is expensive, slow and rather unpredictable—particularly so, it seems, in construction. One of the main reasons for this state of affairs is the all-too-common battle of expert witnesses in the courtroom, orchestrated by lawyers usually with little understanding of the technical matters involved in the dispute.
One of the witnesses summed it all up very eloquently in the recent case Bell Canada v. Olympia & York Developments Ltd. while responding to the lawyer who was cross-examining him: “…of course, this is justice and I think it's great, but I must say that 1 never had any idea in my life that you could ask so many questions for so long about so little.”
Anyone who has served as an expert witness would agree with this sentiment. The process of examination and cross-examination is excruciatingly slow, with an endless number of mostly pointless questions. The witnesses—even though their function, in principle, is to assist the court— rarely have a chance to present their opinion properly. They are almost totally dependent on their lawyer asking the right questions.
There maybe method in the madness. Ordinary construction types, however, get the strong impression that the lawyers doing the cross-examination are simply fishing for something—anything—to trip up the witness.
All this works very well on TV for Perry Mason and Horace Rumpole. It probably works well for criminal lawyers prosecuting or defending murderers. Construction, however bad, is not murder.
No doubt, the process is even more painful for the parties who are paying the experts, at an hourly rate much in excess of what they would normally pay a construction expert, plus, of course, the lawyers' fee at a rate that is often astronomical.
Is there a remedy for this mess? Recently, the search for more streamlined methods of dispute resolution received a boost from unusual quarters: the court itself In a somewhat convoluted dispute between a contractor and an owner, the judge got tired of the usual courtroom antics involving adversarial expert witnesses and tied an alternative: he decided to appoint his own expert witnesses, to advise him directly.
The parties to the dispute agreed on who should be the experts. Once it received the mandate, the experts sought out all relevant documentary information. Its experts had a joint meeting with the parties to fill the gaps, then analyzed all the information and submitted their report to the court. The judge adopted the findings in the report and arrived at his decision.
Not much can be said about the dispute itself for obvious reasons. But let us look in more detail at the idea of court-appointed experts as a means of easing the legal logjam.
There is general agreement that litigation is expensive, slow, unpredictable. But, on the positive side, the legal game has its rules and a judge ready, willing and able to enforce them. Above all, the system has “teeth.” Unlike the alternatives, it cannot be easily blocked or avoided by an unwilling or uncooperative party.
It maybe that the approach adopted by Mr. Justice X in appointing “court experts” combines the best of both worlds: the legal expertise and the “teeth” of a court, plus the technical expertise and analytical tools of construction experts working in a supportive environment rather than on a battlefield.
It is essential that the judge should receive clear and unbiased expert advice because his or her decision on questions of fact is almost unshakable once it is handed down. If there is an appeal, the findings of fact will be treated with great respect. The authority regularly and reverently quoted for this principle is Lord Kingsdown in the milestone case Bland v. Ross, going back to 1860. His Lordship made the following pronouncement: “In all cases…we must, in order to reverse, not merely entertain doubts whether the decision below is right but be convinced that it is wrong.”
The major reason generally given for this attitude is that the trial judge has seen and heard the witnesses, and from their demeanor is best able to weigh their credibility, including, in the case of professional witnesses, the degree of their conviction in their own opinions. Hence the importance of not only how “expert” an expert is, but also how “impressive” as a witness. Hence also the uncertainty of the outcome.
It is interesting, however, to read what really happened in Bland v. Ross. The case shows, first, that Lord Kingsdown's major reason for showing such great respect to the trial decision was not the trial judge's astute observation of the witnesses and, second, that the concept of court-appointed experts has a long and impressive history.
The case was in a “technical” field of great economic importance at the time, with many disputes—just as construction is today. In the early 19th century, that field was seamanship. Here is what happened. In 1859, a sailing ship called Julia rammed the steam-tug Secret, which was towing it into port. The Admiralty Court of England had to decide who had caused the collision.
The Admiralty judge was assisted by a group of nautical experts called Trinity Masters, who were part of the court. He decided that the captain of the Julia was to blame. The court records state: “…the decision, after full consideration, was arrived at by the Trinity Masters, and approved by the Judge.” Please note: the experts decided what must have happened, and then the judge took over.
The owner of the Julia, Mr. Bland, appealed to the Privy Council. Lord Kingsdown delivered the decision. Their Lordships, he said, entirely agreed with the opinion of the court below. Then he delivered the pronouncement quoted above: where a disputed fact involving nautical questions is raised by an appeal from the Admiralty Court, the appeal court will require very compelling evidence of error to reverse the judgment.
The real reason why Lord Kingsdown had so much respect for the findings of the lower court was the fact that they were reached by a judge assisted by an impartial team of experts.
In Bland v. Ross, no experts were called by the litigants. No time or money was spent by one side trying to discredit the opposing experts, and vice versa. The experts worked directly for the court to assist the judge. The effectiveness of this approach is illustrated by the speed with which justice was administered: the Julia incident occurred in November 1859. The case was heard in July of the following year, and the appeal decision handed down in December.
It would be wildly optimistic to expect such expediency today, but the action of Mr. Justice X in appointing the experts is obviously based on sound precedent and will, no doubt, result in lower costs and a shorter trial. ❏
Paul Sandori is professor of architecture at the University of Toronto and vice president of Revay and Associates Limited, a firm of construction consultants and project managers with offices in Montreal, Ottawa, Toronto, Calgary and Vancouver.
Mr. Sandori is also publisher and editor of the Construction Law Letter, a newsletter dealing with the aspects of construction.
