Expert witnesses in building disputes might be a niche field, but it’s one that the New Zealand Institute of Building Surveyors (NZIBS) takes a leading role in.
So it’s with good reason that Institute-trained expert witnesses are well-sought after, NZIBS Executive Member Frank Wiemann says.
Lawyers are keen to work with NZIBS members because they go through rigorous, thorough training, with a heavy focus on internationally accepted rules for expert witnesses.
Whereas the competence of expert witnesses without NZIBS or equivalent training has often been found wanting, Mr Wiemann says, due to a lack of understanding of the role.
“A common mistake is that they see themselves as advocates for their clients and try to ‘help’ them as much as they can. They don’t consider their overriding responsibility to the court. This can backfire and affect their reputation.
“At NZIBS it is at the forefront of all our training to ensure that the independent and impartial nature of the position of the technical expert is fully understood.”
The expert witness is the only person who can give an opinion based on evidence, and although they may be getting payed by a client, their responsibility is to the court. The Institute’s training provides the tools and strategies to successfully work in this role.
“Sometimes the evidence that the experts collects can point against the client. The best assistance to the client and the legal team is to inform them of the findings early on, so that they have a clear picture of the situation.”
But the work of the expert witness does not begin in a courtroom or when a lawyer calls, explains the director of sectionONE building consultants.
“Successful expert witnesses understand that their day to day work of investigation and reporting may in the future be used as evidence in a legal case, and they work accordingly.”
In court, everyone can give factual evidence. An expert witness is the only person that can give an opinion based on their specific expertise.
With that comes an added level of responsibility.
“It’s a very easy thing to say someone is at fault, but you have to prove it first. Thoroughly gathered and prepared evidence is vital and forms the basis of the expert witness’ core role.
“As an expert witness, you have got to be prepared to give an independent opinion to the court, not just assist the client.”
For clients seeking an expert witness, the benefit of using an NZIBS member is substantial.
“For those going into a building dispute, by using an NZIBS member you already have a well-trained building surveyor who also understands the dispute resolution process.”
A building dispute is a disagreement on certain issues related to the planning and construction of buildings or property. When something is wrong with a building, there is usually the assumption that someone is at fault.
From there, the goal is to find out what happened in as much detail as possible.
“For example, home owners find an issue with a building some-time after they have bought it,” Mr Wiemann says.
This can always happen after a conventional real estate transaction, but can be even more complex in situations we now see in Christchurch, where some earthquake repairs were sub-standard and this was only discovered later.
Depending on the size of the problem, it may warrant legal action, and a lawyer would advise that someone like a building surveyor is needed to work as an expert witness.
“It’s about establishing the cause and effect and making it clear how and why things happen.
“Your opinion should be based on thorough evidence, as you assist the court by providing your knowledge from investigation reports and from drawing conclusions from the results of those investigations.
“I believe you are there as an expert witness to bring clarity to complex and convoluted situations.”
But Mr Wiemann says expert witnesses are not as well utilised as they should be and often their expertise can be used to resolve potentially lengthy disputes early on, saving costs for all involved.
“Many people underestimate the complexity of a building dispute, so being an experienced and well-trained expert witness and building surveying goes hand in hand.
“Building surveyors have skills in looking at something in great detail and can be very helpful to preventing disputes.
“As scary as it may seem at the beginning, being an expert witness is an exciting area to work in and is a niche profession that comes with serious demand. It is a role that promotes job satisfaction and gives back to the community.”