by Bernie McGarva and Cleo C. Kirkland with additional content provided by Geneviève Gagnon and Léïc Godbout
Definitions
Admissible: Relevant evidence not otherwise excluded.
Arbitration: A hearing to determine an interest dispute, heard by an arbitrator.
Board: A body of persons to which certain powers are delegated or assigned or who are elected for certain purposes.
By-law: A law binding on all persons to whom it applies.
Commission: The name of a body which has the authority to administer a program or statute, manage a fund or a public utility, investigate a matter or perform some other public function.
Conflict of Interest: Interests that conflict, and that might influence or interfere with a person’s ability to perform a function or exercise a duty. This can occur when the person is in a position of trust which requires them to exercise judgement on behalf of others (people, institutions, etc.), and also has interests or obligations of the sort that might interfere with the exercise of judgement, and which the person is morally required to either avoid or openly acknowledge.
Counsel: A barrister or solicitor, in respect of the matters or things that barristers and solicitors, respectively, are authorized by the law of a province or territory to do or perform in relation to legal proceedings.
Discovery: Disclosure by the parties before trial of information and documents.
Escalation Clause: Clause in an agreement providing for increases in rent, wages, or other form of payment, based on some factor such as tax increases.
Evidence: The oral and written statements and information and any actual things produced in a proceeding; anything which may be used to prove a fact or support an assertion.
Examination: The questioning of a person under oath.
Exhibit: A document or object admitted as evidence in court.
Expert Witness: A witness whose competency to form an opinion on some subject before the court was acquired by a special course of study or experience.
Hearing: Generic label to describe trials, appeals, and interlocutory proceedings (proceedings which are provisional, temporary or determined by the court prior to final judgement).
Inquest: An inquisitorial investigation, where no parties’ rights are directly affected.
Inquiry: An investigation, a hearing.
Litigation: A lawsuit and all the related proceedings; the term may refer to any proceeding before a court or tribunal.
Notice of Appearance: A party’s written notice filed with the court or oral announcement on the record informing the court and the other parties that the party wants to participate in the case.
Objection: A formal statement opposing something that has occurred, or is about to occur, in court and seeking the judge’s immediate ruling on the point.
Privilege: Acts as an exception to the truth-finding process of trials. All relevant evidence is presumed admissible but some probative and trustworthy evidence is excluded in order to serve overriding social interests. Similarly, some communications arising out of defined relationships are exempt from disclosure in judicial proceedings.
Proceeding: The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgement.
Provincial Court: Court constituted under s. 92(14) of the Constitution Act and constituted, maintained and organized by the provincial legislature to administer justice in the province.
Remuneration: Payment for services provided.
Retainer: A preliminary fee given to secure services and induce them to act for the client.
Small Claims Court: An inferior court with a limited jurisdiction over civil matters, limited as to monetary jurisdiction and as to subject matter.
Solicitor: Refers to one who does not appear in court regularly but does any of the other work of being a lawyer.
Statute: A law or act which expresses the will of a legislature or parliament.
Subpoena: Document issued by a third party compelling a person to attend proceedings as a witness in order to give testimony; given under the threat of penalty.
Summons: A document issued by a court, agency, board or commission, or another person authorized to issue summonses, requiring a person to attend as a witness at a trial, hearing or examination, to produce documents or other things, or to testify before the issuing body or person.
Testify: Give evidence by means of oral communication in a proceeding.
Testimony: The evidence which a witness gives in a court or tribunal.
Tribunal: A body or person which exercises a judicial or quasi-judicial function outside of the regular court system.
Witness: A person who gives evidence orally under oath or by affidavit in a judicial proceeding. In a case involving a project for which the architect has previously rendered services, they are considered a factual witness. In a case where the architect is providing a technical opinion on a project in which they have had no previous involvement, they are acting as an independent expert witness. In spite of some overlaps, each role involves specific work, conduct and responsibilities.
All definitions are taken from, or based on, The Dictionary of Canadian Law, 3rd ed.(Toronto: Thomson-Carswell, 2004) and Black’s Law Dictionary, 8th ed. 35983225.2
Differences between Factual and Expert Witness
Introduction
There are two principal circumstances in which an architect will be called upon to testify as a witness at a trial or before a hearing. In the first, the case will involve a project for which the architect has provided services. The architect is then considered as a factual witness. In the second category, the case will involve a project from which the architect is entirely independent and previously uninvolved. The architect will then act as an independent expert witness. This article will discuss the proper conduct of an architect as a witness in both circumstances.
The Architect as a Factual Witness in a Case Involving a Project for which They Previously Rendered Services
An architect may be asked by a client to appear as a factual witness in a case arising out of a project in which the architect provided professional services. For example, the client may be involved in a dispute with a contractor or other consultant. Alternatively, the client may find themselves embroiled in a claim brought by a third party, as in the case of a personal injury sustained on the premises of the project.
Architects are often targeted following the failure of a building assembly due to a specific, complex, and/or innovative design or due to the discovery of non-compliance with the applicable regulations or standards. For this reason, in all cases where an architect is contacted in a case involving a project where they previously rendered or currently render services, the architect must contact their professional errors and omissions insurer to inform the insurer and to obtain guidance. An architect should never acknowledge any responsibility nor provide any information to the plaintiff or to a third party without prior authorization from their insurer. Otherwise, the architect’s insurance coverage may be compromised.
Cases involving clients and others may also lead to future cases involving the architect. For instance, if an unfavourable outcome occurs in a given case, a client may look to the architect to compensate them for the costs or damages which have been sustained in the first case. This is why it is critical that an architect contact their insurer.
Sometimes an architect will be asked or summoned to testify by a party other than the client. The architect is under no legal obligation to speak to a party or a lawyer representing a party other than their client. However, if summoned, the architect will be under a legal obligation to appear in court or before the relevant tribunal.
Regardless of who has asked the architect to testify (be it the client or another party), in providing evidence in this sort of case, the architect should remember to testify in a manner which is complete and even-handed. In court, the testimony is under oath. The architect should not confuse their role with that of an advocate. While the architect has specialized skills and may testify about matters in which they may be very knowledgeable or skillful, this does not mean that the architect’s role is to promote the client’s case. The architect should fully cooperate with their insurer, the latter’s legal counsel, and the independent architect expert hired by the insurer to provide a technical opinion.
It is important to understand that a summons (also known as a subpoena) is a legal document requiring the attendance of the person who is named to attend to testify in a court or before a tribunal. A summons, in almost all cases, requires the factual witness to bring relevant documents to court. A summons requires the attendance of the individual on a particular date and at a particular time. It may have been issued at the instance of any party to a proceeding (and as indicated above, not necessarily the architect’s former or current client). In all cases where an architect has been summoned, or simply requested to testify by a party, the architect must contact their insurer.
It may seem unusual that an architect could be summoned by or compelled to testify for someone with whom the architect has had no previous contractual relationship. However, this does occur from time to time. The fact that a stranger may have summoned the architect to testify does not end the architect’s obligations and loyalties to the client. Those obligations, however, can never override the architect’s obligations to give evidence in a truthful, complete and even-handed manner.
An architect may be called not only to appear as a witness, but also to spend time preparing for the hearing, in consultation with the client, or with the client’s solicitor. This should be considered to be extra work, and fees should be discussed and agreed upon before the work is undertaken.
The Architect Acting as an Independent Expert Witness
An architect may be asked to testify as an independent expert witness in a case involving a project with which the architect has had no previous involvement. This is generally a specialized line of work in itself, as it requires specific skills and a highly rigorous approach. In such a case, it is expected that the architect is chosen to reflect the special expertise which they bring to bear on a particular issue or set of issues to be decided by the court or tribunal. In these situations, the architect’s point of contact is frequently the insurer or the lawyer of the party retaining the architect.
Since the architect was not previously involved in the project, they will have to rely upon the evidence which is put before them. The architect may find that they have been called upon to act as an independent expert witness in these circumstances by an owner, by another architect, by another consultant, or by a third party such as a contractor or a subcontractor. An independent expert witness is entitled to act for any of the above groups, and in all cases is presumed to bring to the case expertise in an issue which is relevant to the court or tribunal and in complete independence from any of the parties involved. Accordingly, it is inappropriate for an architect to provide expert evidence for a close friend or relative, or on a project with which they have previously been involved. Such evidence would be tainted by the personal relationship involved, and the architect’s ability to provide independent evidence would be brought into question.
As in the case of architects who are called upon to testify in respect of their own projects, it remains the case that an independent expert witness must also testify in a balanced and even-handed way. The independent expert witness code of conduct should be respected. Misleading, complacent, overdramatized or over-optimistic opinions or reports should always be avoided.
Although called upon to support the case of a particular party, this does not thrust the architect into the role as advocate for that party. Experts who see themselves as advocates usually find their evidence met with suspicion and skepticism on the part of not only opposing parties, but the court or tribunal hearing the case. Keep in mind that the client and the client’s lawyer want to know the problems and pitfalls of their case as well as the positives. The independent expert witness is uniquely positioned to assist in providing a balanced approach. Furthermore, they should refrain from passing judgement on those involved in the case or on their liability, and focus on understanding the root cause of the problem at stake and giving a technical opinion on the matter.
In some cases, an architect will be called upon to simply provide background advice to a lawyer on a construction matter. The architect may find themselves giving the lawyer a summary course in a particular subject (for instance, “Roofing 101”). The architect may be asked to attend a trial or a hearing and observe evidence from certain witnesses and provide feedback to the lawyer for cross-examination. In this more limited role, the architect does not perform the full services of an independent expert witness. However, the architect’s expertise and balanced approach is nonetheless called for.
In the province of Ontario, an expert witness testifying is required to execute an Acknowledgement of Expert’s Duty to accompany their report. That Acknowledgement includes the following text:
“I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within my area of expertise; and
(c) to provide such additional assistance as the court may reasonably require, to determine a matter
in issue.”
It continues then as follows:
“I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.”
Possible Appearances for the Architect as Either Factual or Independent Expert Witness
There are many different situations in which architects may act as a witness. A partial listing of those situations is given below.
I. The Courts of Law
In most provinces, architects could appear in Small Claims Court, Provincial Court (Criminal Division) or a Superior Court of Justice.
II. Public Tribunals
Public hearings are conducted by boards and commissions constituted under municipal bylaws and provincial or federal statutes. Their purpose is to determine the rights of individuals under the particular bylaw or statute under which the board or commission was established. Examples of such ongoing tribunals include the Ontario Municipal Board, the Environmental Assessment Board and the Atomic Energy Control Board.
III. Judicial Inquests
The terms of the provincial or territorial legislation regarding public inquiries (such as the Public Inquiries Act in Ontario) enable those provincial or territorial governments to establish commissions that will hold public hearings into particular matters arising from, or concerning, provincial statutes. The objective of these hearings is to establish the true facts of the situation; no finding of guilt is made.
IV. Royal Commissions
A Royal Commission is constituted for the purpose of conducting a public inquiry into a specific matter or circumstance. Ordinarily, participants will prepare a formal statement to the Royal Commission and submit it before the hearing. Appearances before such bodies are usually brief. Witnesses confine their remarks to one or two of the instances covered in the formal brief and their availability for questioning.
V. Coroner’s Inquests
Coroner’s inquests are not intended to determine guilt but to establish a fact or facts. Procedures are similar to those used in the courtroom, although a more informal approach usually exists. Architects are expected to exhibit conduct identical to that exhibited when appearing in court.
VI. Arbitrations
There are many types of arbitrations. Comments on courtroom procedure apply in principle, but must be modified to suit the particular circumstances and the dictates of the particular arbitration.
VII. Professional Disciplinary Hearings
Under the various provincial and territorial architects acts, a discipline committee or conduct committee may conduct hearings into the manner and the quality of a member’s practice and personal conduct. Procedures are similar to those in a courtroom, but architects are usually allowed somewhat greater latitude in conducting their defence than in a court of law.
In all of these various contexts, architects acting as independent expert witnesses can act for either the prosecution or the defence in a given hearing.
The Work of the Independent Expert Witness
Accepting an Assignment
The following quote from RIBA’s Practice Management Handbook is helpful:
“Architects are sometimes approached to act as expert witnesses. This is highly specialized work, not to be undertaken lightly.”
This is mostly applicable to cases where the architect must testify for a project in which they have been involved.
“Expert witnessing” is an exacting phrase. Lawyers expect expert witnesses to stand up to hostile cross-examination and then to be able to think on their feet. To have credibility in the eyes of the court, the reports of an expert witness must be patently impartial and objective, whichever side has commissioned them. Before agreeing to accept an assignment that may involve legal procedures, architects should first be fully satisfied with several important issues.
I. Competence
Competence is a quality of having suitable skill, knowledge or experience for some purpose. It is a dynamic quality that relates to the present task, assignment or activity. Architects should assess their competence by determining that their theoretical knowledge, practical experience and reputation in their field are of a suitable extent and depth to enable them to put forward and to defend a position that would be useful for the client and credible to the court. Judges place considerable weight on the experience of independent expert witnesses. This is not to say that age will in all cases triumph over youth. However, a judge will carefully consider past relevant experience in similar projects in assessing the credibility and weight to be given to the expert’s evidence. The architect may be denied the possibility of acting as an independent expert witness should they lack appropriate specific experience.
II. Conflict of Interest
Architects should examine their personal involvement in the affairs of any of the parties to the action or the inquiry, to ensure that they have no conflict of interest. The architect should also examine any relationships with other clients who are not directly involved, and make certain that participation in the action or inquiry will not result in a disadvantage to them. Architects in large firms will find that conflicts may abound. The party seeking to retain the architect may be acting adversely to an existing or former client of the firm. Similarly, in smaller communities, personal conflicts will also be frequent. All too often the party whom an architect is asked to testify against will turn out to be a neighbour or friend. If there appears to be any conflict of interest, the architect should immediately consult a lawyer or their professional association for guidance.
III. Conditions
Architects should ensure that their normal business activities are not put at risk because of unexpected or unreasonable time demands, or inadequate notices of appearances. Architects should also ensure that informal or personal short-term commitments will not lock them into unwanted longer-term involvement. Finally, architects should ensure that clients understand the possibility that some situations may demand particular skill or knowledge beyond that which they possess, and that clients ought to retain the services of specialists they judge to be necessary, such as engineers, estimators or laboratories.
IV. Restrictions
A client may impose restrictions relating to monetary matters, to confidentiality, to access to essential information, and to certain directions which an investigation might take. The investigation may suggest that the architect’s testimony may take a direction not in keeping with the wishes of the client. In such circumstances, the architect has an immediate obligation to advise the client and counsel of the situation. In rare cases, a client or their counsel may seek to impose restrictions on access to information which makes a fair and dispassionate opinion impossible. In these cases, it is incumbent upon the architect to either obtain relief from the restrictions, or decline the retainer. Impressions formed about an architect’s credibility and capacity as an independent expert witness in one case can have lasting consequences. Risking credibility for the future by taking a retainer with which an architect is uncomfortable is a bad gamble.
V. Confidentiality
In day-to-day practice, the architect has an ethical and often contractual obligation to keep secret and confidential any conclusions reached during any investigation undertaken on behalf of a client. However, the court has the authority to overrule or alter the original obligation. There is a rule of evidence termed “privilege,” which permits a witness to refuse to answer a particular question or produce a particular document. Relationships between architects and their clients do not qualify for such “privilege.” As a result, the architect who is asked to keep the source or the nature of secret information or trade secrets fully confidential and protected cannot extend such assurances in most court cases. It will be up to the court or tribunal to decide whether architects should be forced to violate a promise of confidentiality. Architects should always label reports as “privileged for the advice of counsel” when they are not meant for the court. This assumes, of course, that the reports have been requested by the client’s counsel. Architects should also be sure to include a clause that specifies that the report was produced for that particular litigation.
VI. Agreement and Fees
To protect the architect and their client, a written contract setting out the nature of services and defining the scope of inquiries should be prepared. The contract may take the form of a detailed letter outlining the architect’s understanding of the commission. Any agreement should make it clear to the client that the architect must remain impartial and is to be reimbursed for professional services, no matter what the outcome. Architects should adequately address issues relating to fees and disbursements. The agreement should set out the services to be provided, the rates of payment applicable, the times and terms of payment, and the desired guarantee of fees. Progress payments and escalation provisions should be included for extended periods of investigation or activity. As these services are very difficult to estimate beforehand, it is useful to divide the work into clearly defined stages, and/or to bill at an hourly rate. Changes and additions to the original terms of the contract may be initiated by the client, legal counsel or the architect. It is important that careful documentation and accounting be made for all “extras.”
Conducting Investigations and Field Work
Before architects can give any evidence at all, they must have made an investigation which involves an examination of the matter in dispute in the field and any analysis that might be required in order to reach their conclusions.
I. Degree of Thoroughness
The architect must be fully aware of the client’s needs, address only these in the report and avoid unnecessary investigation. A personal inspection of the site is usually considered to be essential. Professional quality photographs, preferably in colour, will assist with later descriptions of the site or of site materials, and help refresh the memory of the architect should the proceedings extend over several months or years. These photographs should be accompanied by documentation and witnessing to make sure they are admissible in court. The architect should review and become familiar with all pertinent documentation, manuals, standards, specifications, contracts, hardware or other materials and design drawings. A search of available technical literature and identification of related commentary can be useful.
II. Documentation
It is important that all pertinent information, especially information that may be unavailable at a later time, be properly identified and recorded. The architect should record where, when and from whom information was obtained; what the information is; where it came from and when; names and descriptions of things; and time, place and location of site investigation(s).
Defining the Problem
Clients may ask for something without knowing precisely what they want, or the implications of the request. The architect must know what the client’s strategy is, and what the course of action is expected to be in order to judge the usefulness of the request. Architects must restrict both interest and activity to architecture. They should avoid attempting to solve the case by departing from their field of expertise, keeping their opinion to architectural matters, and avoiding speculation or subjective opinion.
Analysis
It is important that the architect acting as independent expert witness did the work themselves, in order to be able to answer questions that will arise from consideration of the analysis. Mastering the topic at hand is the best way to ensure the confidence needed to express opinions and answer questions with precision and credibility.
The report is generally written by the expert who is testifying, but the underlying investigative work will have been conducted with a small team, and the results of the analysis discussed with the same team. The involvement of any person other than the expert witness should be disclosed in the report. It is important not to mislead anyone as to the precise nature of the retainer and background involvement.
Formulating Conclusions
The architect must assess the information gathered during investigations to determine if it is sufficient to form a conclusion. If it is, the conclusion may be written; it should be carefully worded, so that it may be read in a positive sense. The use of disclaimers can dilute, if not negate, the effect of the report, but the wording should accurately reflect the degree of certainty of the architect’s opinion.
The architect should not hesitate to express an opinion in the conclusion, but it is very important to show how the opinion was formed from the data presented.
If it is not possible to state an opinion (for instance, in the event of insufficient information), the architect should clearly state that no final opinion was reached and the reasons why.
Preservation of Evidence
It is important that data and material which may become official evidence in a hearing or court procedure be held safely under the architect’s control until required to be produced. Evidence should be identified by marking and/or tagging it with information about where, when and under which circumstances it was taken. It should be retained until appropriate clearance or permission for destruction is given.
Calculations not in the report, test results and file data should be kept confidential, but in such a “presentable” form that they can be used at an appropriate time and on the understanding that they may become a part of court documentation.
Reports
Architects tend to use drawings as their principal means of communication; however, in work done for legal purposes, it is customary to use a written report as the primary means of conveying the sense of the work. The language and writing style should be simple and direct, and the use of abbreviations and technical terms should be avoided where possible. This said, drawings, pictures and graphics are also very helpful to explain a technical matter to the judge, and to ensure his or her grasp of the subject.
I. The Preliminary Report
The preliminary report serves only one purpose: it is a means of apprising the client about the progress of the investigation. When the client is an insurer or a lawyer, the document also allows them to assess their risks, and may guide a negotiation strategy to accelerate an out-of-court settlement.
II. The Final Report
Before preparing the final report, it is desirable to discuss the findings and conclusions with the client and their counsel to obtain guidance about the precise issues the client wishes to have included. Nevertheless, the architect must accept final responsibility for the report and must not permit the client to exert influence on its final form or substance.
The final report must deal with the agreed-upon terms of reference, i.e., the client’s needs. The introduction should explain who hired the architect, what the terms of reference were, and what was done to fulfill the commission. It should be complete and impartial. (These should be addressed in the report.)
While the body of the report must be simple and couched in non-technical language, appendices are permissible and may cover specialty subjects intended to be read by knowledgeable individuals.
In Court
The Giving of Evidence
Architects acting either as factual or independent expert witnesses will be considered to bring “expert” knowledge to proceedings primarily involving people who do not share that knowledge. Architects are strongly advised to consult with counsel before engaging in such proceedings and to receive advice and instruction about all of their actions.
I. Preparation for the Appearance
Architects acting either as factual or independent expert witnesses should know their subject thoroughly. They should review all file documents to the point where they are fully familiar with the contents and believe they can answer questions relating to them. Architects should be aware that opposing counsel will attempt to confuse witnesses by asking questions sufficiently different from those anticipated. This can be counteracted through conducting the preparation with assistance from legal counsel.
Usually, the architect and the counsel of the client meet several times during the proceedings so that they both understand the implications of the testimony and the weaknesses of the case. The architect helps the counsel in his or her understanding of the case while the counsel helps the architect prepare for the testimony.
Under all circumstances, architects should remember to confine their answers to those matters with which they are thoroughly familiar, and avoid non-architecture-related opinions.
Architect witnesses have an obligation to choose their words carefully so that those at the hearing understand the technical information being conveyed. It may be useful to rehearse the presentation. It is important that architect witnesses remember that the testimony being given is not directed to the examiner, cross-examiner, or client, but to the “court” with the objective of enabling the court to make the best judgment possible. The witness should not speak as an advocate, or as a debater, but should present facts, expert observations and conclusions.
II. What to Expect in the Courtroom
When waiting to be called as a witness, it is important to be careful in conversations with strangers or those whose particular interests in the proceedings are unknown. While politeness is expected, and safe topics may be treated in a light vein, discussion of evidence must be avoided.
Sometimes counsel will ask the architect acting as an independent expert witness to attend all of the court’s proceedings in order to provide advice about other testimony and what questions should be asked.
III. Procedures and Rules
Witnesses are usually called in a previously agreed upon order (factual witnesses of the plaintiff, independent expert witnesses of the plaintiff, factual witnesses of the defence, independent expert witnesses of the defence). They will be subject to direct examination, cross-examination, re-direct examination and, very occasionally, re-cross-examination, in that order.
Witnesses should take instructions from the officials of the court, such as the judge and the lawyers involved; they should follow their lead, and observe with care the customary courtesies. It is not desirable to be moving about when not actively involved. A discreet silence should be maintained.
Notes may be taken during the proceedings.
Once called and sworn, witnesses under examination are not customarily allowed to discuss the case with anyone until asked to stand down. However, on occasion, they may properly discuss with their counsel matters which have not been covered in the examination up to that time, but it is inadvisable for witnesses to initiate such discussions. Between completion of examinations-in-chief, commencement of cross-examination, and commencement of re-examination, no discussions relative to any aspect of the proceedings are permitted.
Witnesses before tribunals will usually find that many of the usual courtroom procedures will apply. However, the conduct of the hearing will follow the rules laid down by the chair; these must be observed without question.
Qualification as an Expert by the Court
In giving oral evidence as to qualifications, the witness should concentrate on only those qualifications which relate to the case at hand. Prepared listings of qualifications or curricula vitae are always required. Such documents should be concise and should be shown to counsel well in advance of the hearing.
In the case of an architect acting as an independent expert witness, qualifications may be included in the final report as an appendix. In Québec, as required by the Code de procédure civile, a formal “statement relating to the performance of the expert’s mandate” must be filled in by the architect to confirm their commitment to a certain standard of practice and ethics.
Conduct Under Examination
I. Examination-in-Chief (extremely rare in Québec since January 2016)
The witness will be first examined by the client’s lawyer, who will ask a series of questions similar to those discussed in private. It is important that the answers given are consistent with previous replies and limited only to exactly what was asked. Witnesses must be careful to avoid being “set up” for trouble during cross-examination by saying things that may be inconsistent with their general testimony.
If a witness recalls additional relevant information after they have answered, they can retrace previously covered steps, provided the lawyer and court agree. After providing an initial answer, a witness may request the opportunity to offer the further explanation. The lawyer and the court will direct the witness on how to proceed.
While on the stand, the use of notes should occur only if such a procedure has been agreed to beforehand by the parties involved, including legal counsel, since there is the possibility that the notes could be forced into evidence as exhibits. When testifying as “experts,” it is essential that witnesses give only their own opinions; reliance on other experts or text books is self-defeating.
II. Cross-Examination
This stage will be conducted by lawyers representing other parties. Their objective may be to discredit witnesses by questioning their competence, or by trying to find inconsistencies in their testimony in order to cast doubt on the whole testimony. It is most important to preserve credibility. This may be accomplished by maintaining consistency in answers, by reasonable and logical explanations where possible, by asking for clarification when necessary, and by acknowledging that one does not know, if that is the case.
Lawyers use many techniques to put witnesses off guard. They may suggest variations of what was originally said by witnesses, and ask them to agree to increasingly narrow generalizations until witnesses are unable to prevent themselves from being shown to be inconsistent.
Architect witnesses should listen closely to the exact question put by the cross-examiner and, unless fully satisfied that the proposition correctly expresses their views, use their own language instead. If asked why they are reluctant to agree to the cross-examiner’s proposition, witnesses can reply that they can never quite be sure what the cross-examiner means, but can at least be sure of what they themselves have in mind when using their own words to express opinions.
Witnesses should be careful attempting to justify their testimony. If the cross-examiner attacks in an accusatory fashion, implying that something is wrong, the witness should listen carefully to the questions, and answer as directly as possible, consistent with previous testimony. If the cross-examiner demands a “yes or no” answer, the witness should assess whether the question cannot be answered in that way without misleading the court. If it is not possible, simply advise the court. Architect witnesses should scrupulously maintain an attitude of professionalism, accompanied with sincerity and honesty. It is important that witnesses avoid losing their temper, or displaying any rudeness toward cross-examining counsel; otherwise, they may appear to be less sympathetic and less credible.
III. Re-Direct Examination
Re-direct examination may follow cross-examination. Counsel for the witness’s client may ask additional questions on points not previously raised by the witness, and on which clarification is needed. The additional questioning may also be necessary to correct impressions the client’s lawyer suspects may have been made during cross-examination. While under re-direct examination, follow the usual guidelines and testimony as outlined above.
Conclusion
The preceding guideline has been prepared to provide architects who become involved in court proceedings or tribunals with suggestions on how to proceed as a witness. It is hoped that these suggestions will lead to making the architect’s performance as a witness more effective. In any case, it should also serve as a caution to architects who are considering becoming witnesses or who are already involved in proceedings, of the pitfalls and concerns which may arise.
In conclusion, the following basic guidelines are worthy of review:
- When an architect is called upon to act as a witness in respect of a project on which they have previously provided architectural services, they should always contact their professional errors and omissions insurer for advice.
- If an architect is called upon to act as an independent expert, they should be sure that they have adequate expertise and experience with respect to the issues on which they are being asked to testify.
- Architects should always remember that whether they are an independent expert, or are testifying on behalf of an existing client, they are a witness and not an advocate. Architects should leave the advocacy to others and concentrate on giving accurate and complete evidence.
- In all situations where an architect will be testifying in court, they should prepare thoroughly, familiarize comprehensively with the information base on which they may be questioned, and in circumstances where an architect is an independent expert, request an opportunity to review evidence with counsel in advance.
- During testimony, architects should avoid arguments and personalities. Architects should maintain composure, answer the questions which they are asked directly, and not attempt to anticipate the next question.
- Whether an architect is retained as an independent expert, or in the capacity as the current or past architect for an existing client, architects should satisfy themselves with the contractual arrangement in place with respect to their testimony. Litigation proceedings are notoriously lengthy and an architect’s involvement may take much longer and be at a greater personal cost in terms of time and other resources than anticipated.
References
Canadian Sources
Corbett, Marie. “The Ontario Municipal Board: Planning and Zoning Cases.” Osgoode Hall Law Journal 14.1 (1976).
Glazer, Lawrence E. “Architects Can Provide Expert Advice in Construction Cases.” Lawyers Weekly 18.11, 9(2) (1998).
Roman, Andrew J. Guidebook on How to Prepare Cases for Administrative Tribunals, 1st ed. Ottawa: Consumers’ Association of Canada, 1997.
International Sources
Aidlin, Samuel S. “The Expert Witness Prepares for Court.” Professional Engineering Economics and Practice. Pelex, 1953.
Beggs, Gordon J. “Novel Expert Evidence in Federal Civil Rights Litigation.” American University Law Review 45.1 (1995).
Bickley, John A. “The Engineer and Litigation.” International Construction Law Review 8:398 (1991).
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