Innovations in arbitration: Improving the presentation of evidence in construction arbitration

Joint Examination of Experts

Construction disputes often involve expert testimony. Whether the dispute involves a failure to comply with the construction schedule, design or construction defects, or excessive cost overruns, the arbitrators usually will be called upon to choose between conflicting expert opinions. A procedure that greatly enhances the arbitrators' ability to understand, analyze and make decisions involves having both experts available for simultaneous questioning. In international arbitration this process is called, "confrontation," an unfortunate term since the process need not be confrontational.

The "confrontation" can take place after the arbitrators have seen the experts' reports, heard the factual testimony underlying the opinions expressed and each expert's testimony is presented. However, it may be possible to conduct a joint examination of the experts right after the arbitrators have received the experts' reports and before any other testimony is taken.

During the joint examination, the arbitrators may question the experts, or ask one expert to respond directly to a position taken by the other. For example, the claimant's expert may offer an opinion based on a fact that is hotly disputed by the respondent's expert. Since the arbitrators will ultimately decide that disputed issue of fact, it will help them to hear how this fact affects the opinion of the experts. The arbitrators may find that there is no difference in the experts' opinions, and that the case turns on facts in dispute. On the other hand, they may find that the experts differ significantly in their opinion, which may require further information in order to render a decision.

During the joint examination, counsel may ask questions of the opposing experts, and the experts themselves may question each other. The purpose of the procedure, however, is to educate the arbitrators, so they should control the joint examination. Making speeches and carrying on a traditional cross-examination during this process should be discouraged, but honest intellectual debate should be invited. The role of the experts is to educate the arbitrators and an exchange between them can be particularly enlightening, especially in complex cases.

Anticipating the Obvious Objections

During witness examination, we have all objected at one time or another that "counsel is not only leading the witness, he is testifying." And, we have all tried to "testify" during our examination of witnesses. Attorney summaries of the evidence simply legitimize this practice and bring it out into the open. And, to keep the attorneys honest, all of the attorneys' witnesses are subject to cross-examination on the areas in the attorney's summary that relate to them. If the summary is not factually supportable, that will come out during the cross-examination.

When witness panels and joint examination of experts are suggested, counsel may ask, "How do you deal with objections during testimony." The answer is, there generally should not be any objections. The rules of evidence do not apply in arbitration, but for some reason that does not stop attorneys from making objections based on those rules. Attorneys also seem to forget that arbitrators are "professional jurors" who are capable of separating advocacy from facts. And, most are themselves attorneys. Most construction arbitrators do not need to be told that certain testimony is "objectionable"; they will disregard it or weigh it accordingly without being asked. And few arbitrators like being told they cannot hear evidence because a rule that does not apply forbids it. An objection asserted to blunt the impact of damaging testimony often has the opposite effect. Most construction arbitrators are sophisticated enough to know why the objection is made and will pay even more attention to the damaging testimony.