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Comment: Beware of bringing a knife to a gunfight.

The vital role of the expert in a construction dispute is often underestimated and misunderstood by the party appointing that same expert.

The role of an expert witness is not the same as the consultant appointed to put together your claim, however independent you ask them to be.

In arbitration an expert witness (usually shortened to 'expert') can be appointed by the tribunal but more usually each party appoints its 'own'.

It is the appointment of the expert by the parties themselves which leads to the confusion as to the role of the expert and his duties.

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Whilst a party appoints and pays for his own expert, that expert owes a duty to the tribunal (not to the party) to assist the tribunal in determining the truth. The party-appointed expert is not there to fight the party's case.

The expert will prepare an expert report in which he sets out his opinion, hopefully in support, of the appointing party's case. He will usually meet with the other party's expert to attempt to narrow the issues in dispute.

Finally, he will give oral testimony based on his report, be asked questions by the tribunal and sometimes cross examined by the opposing-side's counsel.

It is important that this expert is articulate, unwavering in his views and convincing - all skills usually developed with years of practise.

It is also crucial that he is credible, which usually means demonstrating appropriate, relatively recent, experience on-the-job in the discipline in which he is an expert.

In construction disputes the experts are commonly experts in their field for quantum, forensic delay analysis or in specific technical disciplines eg. MEP or corrosion.

Construction companies in Qatar often do not carry the in-house resource to prepare delay and cost claims and rely on the help of claims or cost consultancy companies to assist them. Confusingly, these consultants are often people who independently act as expert witnesses in formal disputes too. However, a consultant who has prepared a claim should not be appointed as an expert witness in support of that claim. The expert witness in this scenario immediately risks compromising his duty to the tribunal as he is bound to support his original claim document; making it easy for opposing Counsel to attack his impartiality and diminish his credibility.

Experts in local court cases are appointed by the court. Their duty is to the court, usually going beyond finding the truth to also make a recommendation as to the ruling the judge should hand down. In most cases, the judge will adopt the recommendation of the expert. The expert will meet with each party separately, as many times as he deems necessary to understand the parties' respective decisions and reach a decision.

Meetings will usually be carried out in Arabic, recorded and signed.

To confuse roles further, there can be a partisan role for a party appointed expert or consultant in complex local court cases. This time the role is to advocate the appointing party's position to the court appointed expert and to ensure he receives all the information he needs to decide in favour of that party!

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Publication:Construction Week
Date:Oct 9, 2016
Words:536
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