Rather than being about juries swayed by Hollywood style antics, building cases are about defects, cracks, delays, and cost of delays and rectification and are presided over by judges, arbitrators or tribunal members who are rarely swayed by captivating rhetoric from charismatic lawyers.
Indeed, some decision makers have a strong aversion to hearing building disputes because the cases are long, documentation intensive and at times emotionally debilitating for a decision maker, particularly if the case is a domestic building dispute where home owners are beset by the trauma of brick and mortar security jeopardy.
This raises the question about who is more important – the lawyer or the expert witness? Given the clinical nature of construction disputes, many would argue the witness is more important as it is he or she who in identifies and quantifies defects and has 'street cred’ that will shape the outcome. Indeed, flaws or weaknesses in expert witness testimony can prove fatal to a case, and arguably the most important thing an opposing lawyer can do is find and expose these.
Furthermore, parties to disputes often incur damage where ‘hired guns’ exaggerate or understate claims (depending on whom they are acting for) and have testimony exposed under cross examination.
This raises a serious issue. Unlike lawyers or building practitioners, expert witnesses in many jurisdictions are not regulated, are not required to carry insurance for negligence and are not subject to disciplinary oversight - meaning there is no accountability for mistakes which could cost builders or home owners tens of thousands of dollars.
To address this, expert witnesses should be subject to either a new accreditation system backed by statute or an expanded version of current licensing regimes for building practitioners. This would bring professionalism and accountability to the witness fraternity and ensure only those who with suitable qualifications and experience and basic adherence to ethical standards are allowed to practice.
The current lack of accountability cannot go on and the days of builders and consumers losing cases because of inadequately qualified people in this area cannot be allowed to continue. Policy makers must stand up and take action.