Litigation was the only way to fix the matter whenever a stiff dispute breaks out in a construction project. Alternative Dispute Resolution (ADR) mechanism is such a thing that project stakeholders love to take to resolve those differences such as arbitration, in contract documents.
But the stake holders here always need the participation of civil engineers as fact witness or expert witness in any form of litigation or ADR. The fact witness is one of the parties involved in the dispute, whereas the expert witness is always hired by the parties to give analysis and opinion of one or more issues in the matter.
Despite of the dispute mechanism in work, and whether appearing as a fact or expert witness, civil engineers must have the aptitude to present their position entirely and influentially. The main duty would be to tutor the technical aspect of the case under the curtain to the judges, juries or arbitrators. The civil engineers have to be pursuing the tips and tricks while participating in the dispute resolution process.
Honesty: While making a public statement, civil engineers generally holds the higher standard. Take it an example as Canon 3 of American Society of Civil Engineers (ASCE) Code of Ethics says: “Engineers shall issue public statements only in an objective and truthful manner.” In addition, Guideline (c) to Canon 3 says that when serving as expert witnesses, engineers' view must be taken enough knowledge of the facts and honest conviction. There are many tales in the market doing around those experts helps their clients only, but providing information to judges may be trap from which witness cannot be escape. In spite of codes or guidelines, handing the testimony honestly is the only a noble approach.
Always be prepared: Although there is no solid confirmation or proof that strengthens the proposition, it is probably the former Boy Scouts make the best witnesses. The scouting motto of "be prepared" is pretty an apt for civil engineers allowing an examination in a legal proceeding. Similarly with any project meeting with stakeholders, civil engineers must get ready for their taking-part in dispute resolution. The problem is unavoidable time lag between the time you plan for your testimony and the definite date of the hearing. For example, when the attorneys conduct discovery, such as depositions, a noteworthy amount of time may gone pass. It is vital that you evaluate your file, notes, important exhibits, and documents just ahead of the hearing. Moreover, if you equipped an expert report, you should re-familiarize yourself with not only the report, but also the source documents. Witnesses who are hesitant of how they performed their analyses or reached their conclusion lose trustworthiness. Finally, and while this may seem obvious, it is nevertheless often unnoticed: You must evaluate your deposition transcript. Opposing attorneys salivate at the thought of an engineer making a statement in a hearing that is contradictory with one made in a deposition. In summaries: You can never make out your material too well.
Practice well: Civil engineers know that displaying to clients, project teams, and government officials is a vital part of their responsibilities. It is easy to presume wrongly that testifying is just another display only and there is no need to practice. However, arbitrators, judges, and juries are better capable of understanding the dispute when engineers have practiced the providing unified, understandable, well planned responses to both direct and potential cross-examination questions. In other side, finding for an answer, where it may emerge that the witness is exaggerating a reply on the spot, is not an effectual or credible or convincing means of communication.
Display of professionalism and self-reliance: Most civil engineers would have the same opinion that professionalism is a mannerism that should infuse all facets of their professional lives. Simplicity will leave you an impression with your audience, such as a neat look, sitting erect, and affecting a positive behavior.
Don’t be a problem solver for the opposition: Civil engineers are problem solvers by their nature. They outshine the assisting client and full project team – in determining the action for issues that happen during the design and construction phases of a project. This is a commendable skill, but there may be risk: When opposing counsel asks an undefined question, engineers often view it as a dilemma for resolving, rather than a chance to repeat the position they should be advocating.
Speak to audience: The ASCE "Civil Engineering Body of Knowledge, 2nd Edition," recognizes communication as a vital professional result for civil engineers, who must build up the capability to "plan, compose, and integrate the verbal, written, virtual, and graphical communication of a project to technical and non-technical audiences." When serving as a witness, your first task is to comprehend the mind of the audience to whom you are talking. For example, if the forum is arbitration, the bench of arbitrators almost certainly has more than a passing understanding of construction and engineering ideas. Moreover, arbitrators have the authority to ask for a clarification immediately if they do not fully understand a term or concept. Therefore, a more technically nuanced approach is likely acceptable and advisable.
Calmness: Remaining pleasing and polite and docile and respectful is advisable without difficulty, but tough to continue in stress situations, especially when a fault can be expensive to your side's case. The opposing attorney will often exploit tactics to irritate or upset you. Do not take an attraction. Emotional overreaction or fuming responses may display that you are not a rational or logical person.
Follow the leaders: Engineers, in particular those who have achieved the necessary knowledge and experience to deserve getting job as an experts, are familiarized to directing action from a position of authority. Presenting the case is the attorney's responsibility. Thus, it is important to comprehend that methods for providing testimony are meant for attorney. The civil engineers' knowledge, acquaintance, skill, experience and perspective make them necessary, and they should be permitted to give important input into case preparation and arrangement. The planning and execution of the claim is the attorney's liability, and engineers can not go off the script and steal the show. A useful testimonial technique civil engineers should use is that of the late response. In normal discussion it is not unusual for a person to "step on" a question by reacting before the speaker is finished.
The answer is given before the question is fully asked. When the engineer is unsuccessful to stay for the attorney to finish the question, it disrupts the flow of an attorney's presentation, and perhaps distracts point the attorney is making. Civil engineers should control themselves to wait their responses for a "beat" – one full second – which permits the attorney to fully extend the question so the answer gives the greatest impact.
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If a project dispute arrives at the point where litigation or ADR is needed, it is likely that the claims involved are not easy and regular, but fairly complex.
Through high-quality preparation and professional conduct, civil engineers – whether named as expert or fact witnesses – can give valuable support to judges, juries, and arbitrators wading.
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Additionally, following these guiding principles will make the most of the chance to produce a positive domino effect: The first domino is your competent articulation of your position, followed by the thorough education of your audience, with the final domino – hopefully – being a favorable result in the matter.
Reference:-
This is an excerpt from the write-up from John V. Tocco, J.D., is an assistant professor in the Department of Civil Engineering at Lawrence Technological University, published incenews.com
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Published By
Rajib Dey
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