After 25 years of expert witness work and 150+ completed engagements, I have seen the same avoidable mistakes appear again and again in how attorneys engage structural engineering experts. These mistakes are not failures of legal skill — most are simply a function of not knowing how the engineering side of these cases works. This post addresses the five most consequential errors, with practical guidance on how to avoid each one.
1. Retaining an Expert Too Late
The most common mistake is waiting too long to involve an engineering expert. By the time many attorneys retain an expert, the site has been remediated, altered, or demolished. Physical evidence that would have been definitive — failed connection hardware, moisture readings behind wall cladding, concrete samples from the failure zone — is gone. The expert is then left reconstructing causation from photographs and documents rather than from the physical evidence itself.
The remedy is simple: retain your structural expert at the same time you retain counsel — or as close to it as possible. Even a brief preliminary engagement to conduct emergency site documentation before remediation begins can make the difference between a strong causation opinion and a circumstantial one.
2. Selecting an Expert Based on Agreement Rather Than Credibility
Some attorneys want an expert who will "agree with their theory." This is understandable, but it creates a problem: an expert whose opinions are perceived as advocacy is not credible to opposing counsel, to mediators, or to juries. The most effective structural experts are those who have earned a reputation for objectivity — who will tell you when the engineering does not support your theory and help you understand what the evidence actually shows.
Counterintuitively, an honest expert who identifies weaknesses in your case is more valuable than one who papers over them. You need to know about those weaknesses before opposing counsel does. An expert who confirms everything you hope to hear is likely to be exposed in deposition.
3. Not Understanding What the Expert Can and Cannot Opine On
Structural engineers can opine on engineering causation, standard of care for engineers and contractors, code compliance, and technical damages quantification. We cannot opine on contract interpretation, legal duties, insurance coverage, or ultimate liability — those are for the court. Attorneys who ask experts to reach into legal conclusions in their reports create targets for motion practice and can undermine an otherwise solid expert disclosure.
The best expert reports say: "The as-built condition did not conform to the applicable code requirement because..." and "The deficiency directly caused the observed damage because..." They stop short of the ultimate legal question of liability, which belongs to the jury.
4. Inadequate Expert Report Preparation
Federal Rule 26 and equivalent state provisions require expert reports to be complete, detailed, and self-contained. Many expert reports are challenged at deposition not because the underlying opinions are wrong, but because the report failed to fully articulate the basis for those opinions. "See my file" is not a sufficient basis for a disclosed opinion.
Invest the time to work with your expert on the report before it is served. Review it with an eye toward what opposing counsel will attack. An extra two weeks of report preparation often saves months of motion practice and can prevent Daubert challenges from gaining traction.
5. Failing to Prepare the Expert for Deposition
Expert depositions in construction defect cases can run two or three days. Opposing counsel will have read every publication, presentation, and prior deposition transcript your expert has produced. A structural engineer who has not been thoroughly prepared for deposition — including working through the difficult hypotheticals that opposing counsel will pose — can give testimony that undermines an otherwise sound report.
Schedule at least one full deposition preparation session with your expert before their deposition date. Review the likely attack lines based on their prior testimony and publications. The expert should be able to explain every opinion in their report from memory, without having to refer back to documents, before they sit for deposition.
Have questions about engaging a structural engineering expert for your case? Contact Dr. Mitchell for a confidential preliminary consultation — he is available to discuss how these principles apply to your specific matter. Get in touch here.