Appointment and Status of an Engineering Expert in Construction-Defect Claims
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Summary of a lecture on “Engineering Experts in Construction-Defect Claims”
In this article, I summarize my lecture at a professional conference in Kfar Maccabiah on the status of an engineering expert in construction litigation, and review the changes introduced by the Civil Procedure Regulations, 5779–2018, which will enter into force on 6 September 2020 (the “New Regulations”).
For readers’ convenience, the article is presented as questions and answers.
Who is an “expert”?
Below I set out the principal civil-procedure rules governing opinions by experts other than doctors on behalf of the parties and the appointment of a court expert, and present the substantial innovations in the New Regulations (2018) compared with the existing regulations (1984).
The existing position—Civil Procedure Regulations 1984
Section 125 of “Chapter XI: Experts” defines an “expert” as “a doctor, a medical expert, or a person practising as an expert in a scientific, research, artistic or professional subject.”
In construction-defect claims, experts may be called whose principal expertise lies in professional research or who practise the profession. Merely having studied engineering at an academic institution is therefore insufficient: it matters that the expert practises the profession and has acquired substantial professional experience during their career.
The new position—Civil Procedure Regulations 2018
The New Regulations do not define who is an expert. The term must therefore be interpreted under the Evidence Ordinance and the guiding case law.
What is the legal status of an expert opinion?
An expert opinion is “evidence” forming part of the evidentiary material the court examines when deciding a claim. (See: Evidence Ordinance [New Version], 5731–1971, Part C: Evidence of Experts and Public Officials).
Under the law, an expert opinion prepared in Israel has a special status. This is illustrated, among other things, by the provision presuming the authenticity of the expert’s signature even without examination in court: “An expert opinion and a medical certificate prepared in Israel are presumed to bear a genuine signature unless the contrary is proved.”
The Supreme Court has held that the opinion of a court-appointed expert has a special status and should not be departed from without weighty reasons, and only if it contains a manifest error: “When a court appoints an expert so that their opinion will provide professional information needed to decide the case, it is reasonable to assume that the court will adopt the expert’s findings unless there is an obvious reason not to do so” (Civil Appeal 3056/99, Stern v. Chaim Sheba Medical Center, PD 56(2) 936).
How does an ordinary witness differ from an expert witness?
An ordinary witness testifies only to what they perceived through their senses: what they did, saw, heard or said. Thus, an engineer giving ordinary evidence testifies about the plans they prepared, their supervision at the construction site and the work they personally saw the contractor perform.
An expert provides an objective professional opinion on an existing situation—for example, whether particular construction work complies with the standard—without having designed that work or observed how the contractor performed it.
Who may appoint an expert?
Under section 90 of the Courts Law, authority to appoint an expert is vested not only in a judge but also in a court registrar. In certain matters, this authority belongs only to a senior registrar.
May an arbitrator appoint an expert?
The First Schedule to the Arbitration Law authorizes an arbitrator to appoint an expert: “Where deciding the dispute involves a matter requiring expertise, the arbitrator may, at any stage of the proceedings and after giving the parties an adequate opportunity to present their arguments, direct that the matter be referred for an opinion to an expert appointed by the arbitrator. A copy of the expert opinion shall be provided to the parties, who may object to it and require the expert to be examined as though a witness called by the arbitrator. The arbitrator may decline to hear evidence from other experts on the matter referred to that expert, provided the parties were informed in advance and did not object.”
Does a mediator have authority to appoint an expert?
Mediation is an alternative way of resolving disagreements and disputes. Its main characteristic is that it is confidential, and its success depends on the parties agreeing to a settlement proposed by the mediator.
The mediator may consult an expert and obtain an opinion to present the parties with the correct factual, professional and legal position, narrow their disagreements and improve the prospects of finding an agreed solution.
The Courts (Mediation) Regulations, 5753–1993, provide that “The parties shall agree in advance on the division of the mediator’s fees and out-of-pocket expenses, including expenses relating to consultation with a person connected with the dispute or obtaining an expert opinion; absent such agreement, they shall bear those payments equally.” The Schedule to the Regulations, containing the standard agreement between parties and a mediator, states: “The mediator may consult an expert and obtain an expert opinion.”
Why are experts needed in every construction-defect claim?
Neither the court nor the lawyers have an engineering education or the professional and technical knowledge needed to identify construction defects unaided. They also lack the knowledge to determine how defects should be repaired and the expected cost. Only professionals in engineering and construction have the necessary expertise.
Even a lawyer with extensive knowledge of construction may not testify as a witness. Their role in court is confined to representing their client, filing pleadings, examining witnesses and submitting closing arguments.
Can anyone be an “expert”?
As is well known, expertise in some occupations cannot be acquired through academic study but rather through years of experience—for example, technical trades such as mechanics, carpentry and vehicle mechanics. The courts have held that an expert need not have an academic degree but must have proven expertise in the subject of the opinion and knowledge enabling the court to understand the technical aspect of the dispute and decide it correctly.
Nevertheless, in construction-defect claims, courts prefer to base their judgments on experts who are experienced engineers with academic training, appropriate professional experience and licensing, and practical competence in the subjects addressed in their opinions. For example, the Haifa District Court held that “a true expert is an engineer who not only knows what complies and what does not, but also knows how to design and eliminate defects in parts of a structure so that, ultimately, they comply.”
How does the court assess the expert’s degree of expertise?
According to the case law, an expert witness’s expertise is assessed against the following criteria:
The expert witness’s professional training;
Their practical experience;
The relevance of their field of expertise to the matter at issue;
The extent of their familiarity with the specific findings;
The consistency of their conclusions with all the findings;
Their familiarity with the relevant literature in the field;
The consistency of their conclusions with that literature;
The reliability of the professional literature supporting their opinion;
The expert witness’s involvement in research in the field;
Their treatment of competing professional approaches and exceptional scenarios;
Why do litigants need their own expert?
Every legal dispute concerns both factual matters and legal interpretation. Each party has reasons for its own view of the dispute, and the same circumstances may admit more than one interpretation.
Claimants tend to “inflate” and magnify their claims, while defendants tend to minimize and downplay the significance of construction defects. A party that exaggerates and departs from the truth risks substantial legal costs and a significant compensation award against it.
Assistance from a party’s own expert therefore allows that party to keep its arguments within reasonable bounds so that its legal position is not regarded as “untenable” and utterly baseless. It is worth emphasizing that a claimant who exaggerated a claim has previously been ordered to pay the defendant’s costs despite succeeding on part of the claim, turning victory into a loss!
When is an expert examined on their opinion?
If the court has appointed an expert and the parties request examination, the expert will generally be examined first, before the claimant’s witnesses.
What should a party do if it wishes to submit its own expert opinion?
The existing position—Civil Procedure Regulations 1984
Each party may submit its expert opinion with its witnesses’ affidavits of evidence-in-chief or 90 days before the first evidentiary hearing, whichever is earlier.
Parties must not submit their expert opinions late. Late submission may result in losing the right to introduce the opinion as evidence in the claim.
The new position—Civil Procedure Regulations 2018
The innovation: a party wishing to submit its own expert opinion must file it with its pleadings—the statement of claim or defence. A party wishing to postpone submission must obtain the court’s permission.
Only if the court has exempted the party from filing the opinion with the pleading, on a separately filed application, must the opinion be filed no later than 90 days before the evidentiary hearing.
If a party did not attach an opinion to its pleading and was not exempted by the court, regulation 93(a) may prevent it from presenting expert testimony and proving a matter requiring expertise on its behalf in the proceedings.
May an expert have a conflict of interest?
A court expert must not have a conflict of interest involving any party.
The existing position—Civil Procedure Regulations 1984
Regulation 126 provides: “An expert who has advised or given an opinion to a person on a matter within their expertise shall not be called as a court expert on that same matter when that person is a party to it.”
The new position—Civil Procedure Regulations 2018
A new provision requires a court expert to declare the absence of conflicts of interest before starting work. If the expert declares personal connections concerning the proceedings, the court or the parties, the court may suspend or cancel the appointment.
What must an expert opinion contain?
The opinion must include a warning declaration. The First Schedule to the Evidence Ordinance [New Version], 5731–1971, sets minimum requirements for an “expert-opinion form,” requiring the expert to declare: “I give this opinion in place of testimony in court, and hereby declare that I am fully aware that, for the purposes of the criminal-law provisions concerning perjury in court, this opinion signed by me has the same status as testimony I have given under oath in court.”
The existing position—Civil Procedure Regulations 1984
The expert must attach a list of the authorities relied on and copies of those that cannot be located by reasonable means. Otherwise, the parties may seek to disqualify the opinion!
The new position—Civil Procedure Regulations 2018
The New Regulations provide that a court expert’s opinion must be submitted with a list of the authorities relied on; authorities that cannot be located by reasonable means must be attached to the opinion.
Why does the court need its own expert?
In Civil Appeal 61/84 Biazi v. Levi , PD 42(1) 446, the court explained why a court expert is needed: “A judge cannot be an expert on every subject. Thus, when a distinctly scientific or professional question arises in a case, such as assessing a medical disability, valuing real estate or conducting a ballistic examination of a bullet fired from a weapon, it is only natural to tend to accept as conclusive the opinion of an expert selected for that purpose by the court or with its approval.”
Courts encourage the practice of appointing court experts, principally for reasons of efficiency and saving time.
In Civil Appeal 680/87 HaMagen Ltd. and others v. Eliyahu , PM 46(4) 154, it was held: “This process of appointing a court expert facilitates, streamlines and shortens the proceedings and should be encouraged. The court is assisted by an objective professional with no connection to the matter or the parties, who examines the issue impartially, like the judge.”
The court expert acts as the court’s “extended arm,” providing the professional framework for the field concerned in the case. A long line of judgments recognizes that a court expert’s opinion enjoys a special status, distinct from the opinions of the parties’ experts in the same case.
Judge Inbar described the court expert as the court’s “right hand” in Civil Case (Jerusalem) 7152/05 : “The duty to act impartially also applies to an expert appointed by the court. Such an expert is the court’s right hand and, as such, is subject to the rules of natural justice.”
How and when is a court expert appointed?
The existing position—Civil Procedure Regulations 1984
A court expert may be appointed at any time, at any stage of the proceedings.
If the expert is appointed with the parties’ agreement, the parties’ expert opinions are removed from the evidence and the court will disregard them.
The court expert must submit the opinion within 30 days of appointment.
The new position—Civil Procedure Regulations 2018
The 2018 Regulations, in the chapter “Court-Appointed Expert,” provide that the court “may at any time appoint an expert, several experts or a team of experts to give an opinion on a matter requiring expertise, and may give instructions and directions from time to time concerning the performance of the role.”
An innovation: a team of experts may be appointed. The wording suggests that the legislature has introduced a new option: a “team of experts” that the court may establish at its discretion. The regulation can be understood as requiring the team to work collaboratively, even if its members do not belong to the same firm.
Another innovation—new powers of the court expert: the expert may require the parties to provide documents and may hear the opinion of a party’s expert.
A further innovation concerns the deadline for submitting the opinion —the court expert must submit the opinion within 60 days of learning of the appointment.
May parties submit their own expert opinions after a court expert has been appointed?
The existing position—Civil Procedure Regulations 1984
The parties have a right to submit their own expert opinions even after the court has appointed an expert without their agreement.
This was held by the District Court, Judge Hila Gerstel, inApplication for Leave to Appeal 9290/96. In that case, the respondents brought a monetary claim against the applicants for damage and defects in the floor tiles of their apartment. With all parties’ agreement, the Magistrates’ Court appointed an expert to identify those responsible for the damage alleged in the statement of claim and determine its extent and repair cost. The applicants argued that the opinion contained numerous flaws, lacked a factual basis and objectivity, and was internally contradictory. They therefore applied in writing for permission to submit their own expert opinion. The court rejected the application, prompting the application for leave to appeal.
The court held that the repeal of regulation 130(b) necessarily meant that additional expert evidence could now be introduced without the court’s permission, even where the appointment had been agreed and the expert appointed with the parties’ consent.
The new position—Civil Procedure Regulations 2018
The New Regulations expressly provide that parties’ expert opinions may be filed only with the opening pleading or up to 90 days before the evidentiary hearings begin, whichever is earlier. Accordingly, a party’s expert opinion cannot be submitted after the final deadline.
Who has authority to give the expert instructions?
The existing position—Civil Procedure Regulations 1984
An expert who is uncertain how to act in view of the parties’ conduct, or when the parties make demands and the appropriate response is unclear, may seek directions from the court.
The new position—Civil Procedure Regulations 2018
The court is empowered to give instructions and directions from time to time concerning the performance of the role.
May clarification questions be sent to a court expert?
The existing position—Civil Procedure Regulations 1984
Under the 1984 Regulations, parties may send clarification questions to a court-appointed expert by applying through the court for clarification of the opinion.
The new position—Civil Procedure Regulations 2018
A party may ask the court for permission to send the expert clarification questions concerning the opinion no later than fourteen days after receiving it;
The expert must answer within thirty days of receiving the court’s decision, and the answers are deemed an integral part of the opinion.
Can a court-appointed expert withdraw from the role?
An expert who has not yet started work may refuse the appointment and must refuse it if there is a conflict of interest or if they cannot complete a professional opinion within a reasonable time—60 days under the New Regulations.
However, the courts have held that an expert’s request to withdraw after lengthy litigation and after the parties have invested substantial sums in the expert’s work would seriously harm the parties and, more generally, the institution of the court-appointed expert.
The courts have further held that the parties’ conduct alone does not justify an expert abandoning an undertaking when the expert should have known from the outset that a bed of roses was not guaranteed.
The appointed expert acts as the court’s “extended arm” and the court expert’s opinion enjoys a special status —the court’s “right hand.” “The duty to act impartially also applies to an expert appointed by the court. Such an expert acts as the right hand of the court and as such is subject to the rules of natural justice.” Thus, because a court-appointed expert must act in good faith, honestly, professionally, objectively and impartially, and derives authority from the court and the parties, the expert owes them a responsibility and cannot leave the role before completing it without a justified reason.
Must the expert always attend to testify about the opinion?
The existing position—Civil Procedure Regulations 1984
Under regulation 130A of the 1984 Regulations, notice of a party’s request to examine the expert must be given at least thirty days before the scheduled evidentiary hearing, or within seven days of receiving the opinion, whichever is later.
The new position—Civil Procedure Regulations 2018
An innovation —a party wishing to examine the court expert must notify the court and the parties and request the summons no later than the concluding pretrial hearing.
Who must pay the expert’s fees and expenses?
The existing position—Civil Procedure Regulations 1984
“131. (a) The court may determine the expert’s fees and expenses and the manner of payment and, subject to regulation 187(b), impose them on the parties or some of them and determine each party’s share.
(b) The court or registrar may at any time direct the parties or any one of them to deposit such sums as the court or registrar considers appropriate to cover an expert’s fees and expenses, or to pay them directly to the expert. At the end of the trial, the court shall decide who bears those fees and expenses. If a party fails to comply with such a direction, the court or registrar may strike out that party’s pleadings or adjourn the proceedings until compliance.”
The new position—Civil Procedure Regulations 2018
The Regulations establish a proper mechanism ensuring that the expert need not chase the parties for payment. However, the sanction allowing pleadings to be struck out or a hearing adjourned for failure to make the deposit has been removed:
“92. (a) The court may give directions concerning a court expert’s fees and expenses and their payment, including answering clarification questions and examination in court, and impose them on the parties or any of them.
(b) The court may at any time direct the parties or any of them to deposit security for payment of the court expert’s fees and expenses, or to pay them directly to the expert. At the end of the trial, the court shall decide who bears those fees and expenses.”
How much confidence does the court place in its appointed expert?
The court will generally adopt its expert’s findings.
The approach of adopting the court expert’s opinion by default is reflected, among other cases, in Application for Leave to Appeal in Administrative Matters 5171/07 Eli Menashe v. Holon Local Planning and Building Committee , where Justice Miriam Naor held: “As is known, under the established rule, when a court appoints an expert so that the opinion will provide professional information for deciding the case, it is reasonable to assume that the court will adopt the expert’s findings unless there are weighty reasons not to do so.”
The expert witness’s professional reliability concerns “the expert’s professional level and the quality and nature of the examination or other inquiry undertaken, on the basis of which the conclusions were reached” (Criminal Appeal 1839/92, Ashkar v. State of Israel, [published in Nevo], paragraph 4 (4 September 1994).
Assessing the expert’s reliability is a matter for the court, whose discretion is not restricted by the witness’s expert status. As noted, however, the court will be reluctant to depart from the opinion absent weighty reasons. Civil Appeal 293/88— Yitzhak Naiman Rental Ltd. v. Monty Rabi and others, Tak-Al 90(2), 532.
What are common expert errors, and when will an expert be disqualified?
Error A—failure to disclose a conflict of interest
Shortly before his appointment, engineer D.S. was asked whether anything prevented him from serving as expert given the parties’ identities and/or past or present professional or business relationships that might raise concerns about objectivity or a conflict of interest. He answered no. It later emerged that he had concealed his prior acquaintance with one party’s expert, Mr B.A., and his appointment was therefore disqualified. Civil Case 24311-12-11, Shitrit Flora v. Haski Alon
Error B—the expert gave an opinion in a field in which they do not regularly practise.
In Civil Case 4409/01, Yaniv v. Menora Insurance Company Ltd., the expert was asked what caused the claimant’s fall on stairs. After hearing the expert, the court found that his report did not state what the stair surfaces were made of or what was wrong with using that type of surface. He did not state clearly and unequivocally that the stairs were unsafe or failed to meet any Israeli standard then in existence. The expert admitted that he was unfamiliar with the necessary tests and had not conducted professional tests. The court therefore held: “The expert opinion has no advantage over other evidence in the case and is merely additional testimony equal to that of the claimant and the other defence witnesses—some of whom are themselves professionals able to give a professional view on whether the stairs are slippery.”
Error C—the expert gave an opinion in a field in which they were not authorized to practise—for example, an engineer who is not licensed giving an opinion in a field requiring licensed-engineer status.
“As to his professional status, the expert testified that he was unsure whether he was already registered as a licensed engineer when he visited the site. The vast majority of his professional experience is in writing opinions rather than practising engineering.” He testified that he had never designed rock retaining structures. His evidence also revealed limited experience with retaining walls. The court found that his testimony demonstrated a lack of sufficient experience generally, and specifically a lack of experience qualifying him as an expert. “The expert contradicted himself in the same breath, demonstrating a lack of professionalism and even professional confidence.” It follows that his opinion was not based on investigation, whether through site inspection or examination of the standards and safety laws applicable to rock retaining structures, but consisted entirely of unsupported speculation. (Civil Case 17422-04-13, Cohen v. Hila Engineering Construction and Development (1998) Ltd. and others)
“Under the Engineers Regulations, a registered engineer may work only on what is defined as a ‘simple structure.’ Since Mr B.A. was prohibited from performing activities reserved for a licensed engineer, it is inconceivable that he could be qualified to give an opinion identifying structural defects.” Civil Case (Haifa) 26999-06-11, The Condominium Representative Committee at 37 Alon Street, Haifa v. Sharviv Ltd. (It is recommended to consult the First Schedule to the Engineers and Architects (Licensing and Reserved Activities) Regulations, 5727–1967.)
Error D—insufficient experience
The Haifa District Court criticized the expert’s professional competence: “I have not overlooked the opinion and testimony of the claimants’ expert. I note my impression that the level of professionalism shown in preparing the opinion was insufficient. When he gave the opinion, he was an engineer at the start of his career, with only four years’ experience, and had not yet obtained licensed-engineer status authorizing him to design large structures. As for professional experience, I found no details of any specific projects he had undertaken.” (Civil Case 42295-10-11, Katzav and others v. Sharviv Ltd.).
Error E—the expert failed to attach a list of references and copies of references relied on that could not otherwise be obtained.
Error F—the expert conducted a superficial inspection instead of the required tests.
“Further support for the expert’s lack of professionalism is found in the way he prepared his opinion, particularly his failure to perform tests and excavations personally, relying instead on a merely superficial external examination.” (Civil Case 17422-04-13, Cohen v. Hila Engineering Construction and Development (1998) Ltd. and others)
Error G—the expert purported to make a legal ruling rather than a professional factual finding.
An expert must not include views on whether the parties acted in good faith in bringing their claims, which facts have been proved in the expert’s view, or the amount of compensation due to the respondents.
In Application for Leave to Appeal 8148/96 (Tel Aviv District Court), the expert included statements such as “the tenant’s contention… has no basis…”. The court criticized this and held: “This wording deprives the court of the ability to decide the dispute independently, because the professional aspect of the opinion may be inseparably influenced by its ‘legal’ aspect. An expert’s role is to lay a factual foundation before the judge while leaving the power of decision to the court. The expert’s conduct here impairs that power. I therefore have no choice but to disqualify the opinion.”
Error H—the opinion included personal criticism of a party, raising concern about bias or personal hostility.
Error I—the expert provided an “inflated” opinion.
In Civil Case 110435/01, the court held: “The filing of ‘inflated’ construction-defect claims has long become a common phenomenon in Israeli legal discourse. Such a claim may be described as ‘the mountain giving birth to a mouse’ once it proves utterly unfounded and grossly exaggerated.”