Over the years, thanks to our experience, we have absorbed and learnt from many judgments in construction defect claims. (HERE, a selection of judgments obtained by DPcon’s legal department.)
Thanks to these rulings, which brought trials and lawsuits to an end, we have learnt the criteria the judges applied in them, since they were able to discern and clarify from the proceedings, above all from the oral hearing, how to assess the work of the experts: some, in theory, in favour of the claimant and others in favour of the defendant(s).
Learned judges have established in their judgments that, in order to assess an expert’s qualifications, it is not enough to consider their academic qualifications, especially when it comes to determining whether the expert really has the knowledge required. It must be checked that they know the subject. The knowledge they claim must be verified, without being impressed by the experience they say they have or by the number of years in practice, and one must not fall into the prejudice of measuring specialisation solely by their studies or their experience as a “court-appointed expert”, because in many cases the real experience accumulated in the subject being examined is very important. The credibility they convey in the courtroom before a judge is also very important.
It is true, and it must be acknowledged, that experts are linked to the parties; even so, their professional credibility must be based on their impartiality. Even when reports issued by public authorities or official bodies or laboratories are submitted, they should not be trusted blindly, as they are often clearly insufficient. And with the stamp of “officialdom”, they claim to be above any opinion or report by a free and independent professional who is not a civil servant.
An expert architect must be convincing before a judge and explain as clearly as possible why they reached the specific conclusions in their expert opinion, which they arrived at through a logical and technical process, and why, on the other hand, the conclusions reached by the opposing experts are not as rigorous.
Likewise, what matters is to check that the experts’ conclusions are reasoned, and that, regarding the expert examinations carried out by the experts involved, they state the means or instruments used and the data on which their reports are based.
The most decisive thing is to consider the cognitive operations that form the backbone of the expert report, since in the report the path or reasoning followed to reach the conclusions is as important as the conclusions themselves.
Judges value a detailed explanation of the reasoning, theories, methodology and rules of experience the expert relies on, etc., assessing whether these led to the conclusions and checking whether they are consistent with logic, with the current state of science and with the knowledge accepted among professionals in the field. They must also consider the techniques used, that is, the availability of technical means and analysis equipment, the tests, the exploratory openings, the instruments used and their calibration or suitability.
Sometimes an expert bases their report on the construction design of the home itself, or on the assessment of a new geotechnical survey commissioned for the purpose of preparing the report. However, it carries less weight if the other party’s expert relies on the geotechnical survey carried out before the building design was drawn up.
Finally, in order to hand down the judgment, the judge will have to reason that one expert’s explanations are more rigorous and supported by technical data, while those of the other expert are partly inaccurate, or based on conjecture, old or outdated data or unproven facts.
This is because the reports in a case must be freely assessed by the judge in accordance with “sound judgement” (sana crítica), a principle that allows the judge to give reasons for and argue their decisions freely, and to side freely with what one expert or another says. But this freedom has a limit, namely arbitrariness in the proceedings, which would occur when logical processes, rules of experience and scientific knowledge have not been taken into account.
That is why we insist that it is very important for the expert who prepares the expert report to be a specialist in building pathology, have courtroom experience, be credible, clear and convincing, and base the conclusions of the report on tests and technical data.
If you have any questions, get in touch with us.
DPcon Reclamación daños constructivos.
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