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The Roofer/Contractor Guide to being an Expert Witness

Whether you are interested in become a roofing/contractor expert witness for litigation, or you have found yourself caught in the middle of a dispute and want to express your expert opinion the right way, this blog is meant to provide some basic tips and resources to help you understand what works and what doesn't once you step into the courtroom. Please do not consider this blog legal advice or the creation of an attorney-client relationship.

Are You Qualified?

Before a court will let any person offer an expert opinion on any topic, the person must be qualified by "knowledge, skill, experience, training, or education." Details matter. A heart surgeon and a brain surgeon are both surgeons and both medical doctors. But a heart surgeon is likely unqualified to give an opinion about a brain surgery and vice-versa. If you are a roofer who has spent his/her entire career installing custom tile roofs, then you are probably not qualified to give an opinion on hail damage to an asphalt shingle roof. If you are a contractor whose primary work involves water mitigation, you are probably not qualified to give an opinion on why a roof needs to be replaced due to wind damage.

Whether you are qualified depends on the facts of the case. Whether your opinion is about causation or cost, you need to show the Court why we should listen to you.

An effective expert witness is credible, someone who can objectively show they know what they are talking about and they have the backup to prove it. Don't expect a jury to take your word for it because "you have been doing this for x number of years." A seasoned litigation expert will have a well documented resume (curriculum vitae), showing their experience, education, certifications/licenses, notable awards or contributions, and publications.

Is Your Opinion Reliable?

This is where most of the battle of the experts exists. Courts will analyze not only the methodology for how you arrived at your opinion, but the underlying principles that form those opinions.  Federal Courts apply the Daubert standard for reliability which includes a non-exhaustive list of factors such as:

1) Whether the technique or theory in question can be, and has been tested; i.e. Research on how the size of hail or the speed of wind will damage a particular roofing surface.

2) Whether the methodology has been subjected to publication or peer review, i.e. Does your opinion follow the principles of research that has already been published and peer-reviewed? This could be research from engineering companies or the National Academy of Forensic Engineers, materials related to proper installation techniques based on roofing surface, pricing guides, etc.

3) The methodology's known or potential error rate; i.e. Whether following the steps you are telling the jury should be followed leads to incorrect conclusions. If there is potential for error, are you accounting for it in your analysis by reasonably excluding alternative conclusions?

4) The existence and maintenance of standards controlling its operation; i.e. Inspection protocols. Think of what steps must be followed by a roofer/contractor of ordinary prudence in rendering their opinion on the cause or cost of storm damage.

5) Whether it has attracted widespread acceptance within a relevant scientific community; i.e. Is your methodology in line with what those in the community believe is acceptable?

In simple terms, Court's will look at the steps you took to make your opinion. Did you inspect the entirety of the relevant areas of the Property? Did you take photographs? Did you perform any testing (brittle testing, desaturation, physical touch, thermal imaging, etc.) Did you review weather data? Did you research the applicable building code? Did you pull information from the manufacturer? Did rule out other potential causes of the damage? Did you apply the accepted research to your analysis? If you didn't do some of these things, your credibility is going to be affected.

As an attorney for policyholders, any time I am using an expert witness, I spend the time ensuring that any expert I use is right for the case and that their opinion will reach the jury. I also spend a considerable amount of time figuring out ways to exploit weaknesses in my opponent's experts. I will find everything on them - their name, address, work history, prior testimony, criminal background, prior reports, licenses... you name it. Know that whoever hires you to be their expert, there is an attorney on the other side that is going to spend a lot of time trying to prove you are not credible or that your opinion is wrong.

Final Thoughts and Tips

In addition to brains, you have to have charm. I've encountered experts who had genius level IQ's but were so boring, there is no way they could keep the jury interested long enough to be of use in the case. Being relatable and likeable can be the difference between winning and losing.

Stay true to the facts. The best experts are respected by Courts and attorneys from both sides because their methodology is proven and their opinions are reliable.

Don't get involved in a case where your motive or credibility is easily attacked.

If you are interested in becoming an expert witness, you should consider obtaining and maintaining commonly held certifications/licenses such as 1) HAAG's Residential and/or Commercial course; 2) the IICRC; 3) Your State's Roofing Contractor Association; 4) Xactimate; and 5) an adjusting license.

"Abandon foolishness so you may live; walk in the way of understanding." Proverbs 9:6

Aaron J. Arenas, Esq.