Understanding the Role of a Quantum Expert Witness

Insights by: John Vint, Commercial Director

 

Over the years, I have acted as quantum expert witness on many arbitration cases both for the Claimant and the Respondent. In this article, I will be discussing the role of the quantum expert supported by key takeaways to provide guidance to anyone who may be experiencing or anticipating the need for an expert witness.

A Quantum Expert Witness is appointed to provide a relevant and impartial opinion in their area of expertise regarding the strength of evidence relating to a disputed matter. When an expert witness is sought, it is during a legal dispute when an unbiased opinion is needed. They are chosen based on their experience in the area in which they are providing testimony.

Let’s take as an example, an arbitration under the rules of the International Chamber of Commerce (ICC) for a residential apartment building project in the UAE. The Claimant is the developer, and the Respondent was the main contractor. This type of case is fairly typical in this part of the world and serves as a great illustration of how an expert witness can support either party.

In this example, the case comprises of the reimbursement of the Claimant’s costs due to such matters as;

It is important to remember that an expert witness’ role is not to simply apportion blame or ascertain cause or merit. For many cases, it is necessary to determine a reasonable level of financial compensation should the Tribunal consider that there is entitlement. Therefore, the true objective of the expert witness is to assist the Tribunal to reach a reasonable conclusion without passing judgement on contractual and legal issues.  My role, in this example, is to identify costs incurred by the Claimant, which may not have been identified in the initial Statement of Claim.

Although it can be difficult to have a complete separation from contractual and legal issues, it is important to concentrate on determining a reasonable level of quantum against each head of claim for various contractual scenarios. This can result in creating a methodology of Primary and Secondary Conclusions, which is an approach that’s necessary in almost all cases. Cases can often lack contemporaneous records even if it is clear that an event took place, as there was no record keeping at the time. These weaknesses should not be hidden, but identified, and appropriate and credible methodologies should be used to deal with them.

I would like to suggest here that if your project or commercial management consultant is also able to involve personnel with exceptional project audit, forensic contractual / quantum analysis and expert witness experience to fulfil a predefined role within the scope of services, this will bring disproportionately great benefits.  Not only will it help avoid disputes, should these surface, it would fortify your position during the contract period and serve you well in the event of a claim or indeed, a future arbitration.

Additionally, there are heads of claim that can be difficult or even impossible to apply firm costs to. This includes “reputational damage”, which could extend for years into the future. With my background in the construction industry, I have often suggested that a reasonable figure should be applied based on the size of the company, its average turnover, etc.

Once you attend the hearing, all the work and effort undertaken can be completely reversed if the expert witness is not fully prepared. There are always strict rules about where you can wait and who you can converse with before being called for cross examination. No notes are allowed to be brought into hearings, so it is necessary to retain as much information as possible.

The objective of the cross-examining counsel is to dissect the findings of the expert, to expose any weaknesses, to exert pressure and to lead him down certain paths.  The golden rule is to take your time responding to questions and read through the relevant sections of the quantum expert report while deciding how to answer them accordingly. Often, the cross-examining counsel will move onto the next question before the previous one is fully answered. It is allowed as necessary to respectively ask the Tribunal for more time to provide a proper response.

Winning these cases provides valuable guidance in learning the right approach to use. At PMKConsult, we have a wide range of professionals, not only in matters of quantum, but in delay and workmanship analyses.  We often provide assistance in trying to avoid opening arbitration cases and dispute resolution services, including project audits.

With my background working in construction disputes that have proceeded to arbitration cases, I am able provide my expertise whether you are the Claimant or Respondent and whether the Employer, Contractor, Sub-Contractor, or Consultant. A greater understanding of the role of an expert witness can help when having to determine the best outcome possible in a case, and also play a role in helping to avoid arbitration or litigation depending on when the expert witness is solicited.