“Recommended Practices for Design Professionals Engaged as Experts in the Resolution of Construction Industry Disputes.” Chances are you’ve never heard of it, even though it’s probably the most widely endorsed such document ever produced by the construction industry.

Created in 1987, “Recommended Practices” has been endorsed by 37 prominent organizations, including the American Society of Civil Engineers; National Society of Professional Engineers; American Institute of Architects; American Society of Mechanical Engineers; American Society of Heating, Refrigerating, and Air-conditioning Engineers; American Association of Engineering Societies; American Council of Engineering Companies; and, most recently, the Institute of Brownfield Professionals, among many others.

It’s rare that more than a handful of significant organizations can agree even on brief communiqués, so it’s extraordinary to have so many agree on a fairly comprehensive document. But this particular document advances 13 specific recommendations designed to bring fairness into court cases that require expert witnesses to testify.

It’s unfortunate that such a document was needed in 1987, and even more unfortunate that the need for it grows rather than diminishes. After all, expert witnesses play a pivotal role when a dispute involving technical issues goes to trial. They explain, in lay terms, causes and conditions that a trier of fact—a judge or a jury—might otherwise find difficult to understand. Unlike other witnesses, however, expert witnesses not only are allowed to testify about their opinions, those opinions carry the same weight as facts.

As such, when experts disagree, the facts come in to dispute, making a trial of facts (a.k.a., a trial) a necessary next step.

There’s nothing wrong with experts disagreeing, as long as their disagreements stem from honest differences in professional judgment and opinion. Regrettably, some experts are, plainly and simply, hired guns: professionals who are willing to say almost anything a lawyer wants to hear, providing the price is right. And that price can be dear given what’s at stake; by testifying to a contrary opinion, no matter how specious the argument, an environmental or engineering expert can make a trial necessary.

Trials are expensive. Any number of individuals and organizations would rather pay, say, $100,000 to settle a dispute and avoid a trial than pay $250,000 to prove a trial should not have been necessary to begin with.

Regrettably, little can be done to stop the hired guns because, in our legal system, experts enjoy near-total immunity for whatever they say.

Hired guns can be particularly destructive when a design or environmental professional is accused of negligence. For such a professional to be found liable, the trier of fact must conclude that the individual failed to meet the standard of care—how were fellow professionals conducting similar work at the time—and therefore caused injury or damage. To reach that conclusion, the trier of fact first must decide what the standard of care was, a definition that typically requires expert testimony.

Which expert will the trier of fact believe? Generally speaking, the person who looks and speaks more like an expert will probably carry the day.

Many hired guns often appear dignified. And while they come multidegreed and multilicensed, they all too often violate ethics and pervert the law’s protections.

Consider, if you will, the owner of an improved property that was being used as an automobile dealership. He had a buyer lined up and wanted to determine whether there were any potential environmental problems with the property so he could factor them into the sale price.

The owner retained an environmental firm to perform an all appropriate inquiry (AAI) in the form of a Phase I environmental site assessment (ESA). The firm’s report noted that “the presence of vehicles on the site precluded a survey of the entire parking area. Therefore, the possibility exists that there are other underground storage tanks (USTs) on the property that were not identified in this report.” The report went on to recommend a geophysical survey to locate additional USTs.

The owner showed the report to the potential purchaser, which then engaged its own consultant. A cluster of USTs was further identified and was not referenced in the original report. The prospective purchaser backed out of the deal and the existing tenant allowed its lease to lapse, concerned by the uncertainty associated with the site.

Real estate values were dropping precipitously at the time, and this encouraged the owner to move forward with remediation. Still unable to find a new tenant or a new buyer, he looked into suing his original consultant.

He retained an expert—a hired gun—who compared the original consultant’s services to the scope included in ASTM Standard E 1527, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. The original consultant was negligent, the hired gun said, because it had not followed E-1527.

Armed with this expert opinion, the owner decided to sue the original firm, which then retained its own expert, a highly experienced environmental professional. The two adversarial parties reviewed each other’s records (obtained through subpoena), participated in interrogatories, and then moved to the deposition stage of discovery.

During this stage, the owner’s attorney claimed that the original firm’s “site inspector missed the storage tanks because he did not follow the ASTM standard.” The expert agreed, but he emphasized that the ASTM standard did not define the standard of care.

At this point, he referred to “Recommended Practices for Design Professionals Engaged as Experts in the Resolution of Construction Industry Disputes,” Recommendation Seven, which states, “The expert witness should testify about professional standards of care only with knowledge of those standards which prevailed at the time in question, based upon reasonable inquiry.”

Furthermore, the owner’s hired gun had failed to perform any research regarding the standard of care. By contrast, the original consulting firm’s expert had reviewed area practitioners’ Phase I ESA reports and noted that, while the original firm’s report demonstrated room for improvement, it was, in fact, in keeping with the standard of care in effect at the time.

The original firm thereupon sought a dismissal of the owner’s case on the ground he failed to demonstrate negligence.

The judge ruled in their favor.

What the hired gun failed to understand was the difference between an ASTM standard and the standard of care.

An ASTM standard describes how a committee of ASTM members thinks a service should be performed, whereas the standard of care—the only legally accepted yardstick by which the adequacy of an environmental professional’s services can be evaluated—reflects how practitioners in a given area ordinarily perform a given service at a given time.

Are you familiar with “Recommended Practices?”

You should be, and so should the attorneys you retain and those who retain you. It’s one of the few tools available to help reduce your risk of being ambushed by a hired gun. If you haven’t seen it, order a copy from the Institute of Brownfield Professionals (www.brownfieldpros.org). It could easily be one of the most important documents you will own.

John Philip Bachner is executive director of the Institute of Brownfield Professionals in Silver Spring, Md.