How to Be an Effective Expert Witness in a Construction Dispute

Kent B. Scott | Babcock Scott & Babcock, PC | June 28, 2018

Being an expert witness in a construction dispute can be a difficult and stressful experience, but one that is made easier by following a helpful set of rules that govern the process. An expert witness is placed in a very controlled environment where every question is calculated and precise. This setting is atypical of daily life and as a result, being a good witness will take practice and refinement over time. Faced with the task of being an expert witness in a construction dispute, it’s not just about intelligence and experience. Instead it’s about preparation, understanding the audience, the rules, and the “central themes” of the dispute. Giving testimony is not a conversation, it has its own language and its own rhythm. Question, listen, pause, answer only what is asked, stop. Guessing, interrupting, and volunteering are wrong and dangerous in the narrow and artificial world of testimony, where every word is taken down, under oath, and scrutinized.

In this world, the questioner (lawyer) appears to be in control. That’s a lie, but even the
most experienced expert witness can fall victim to it. The expert witness has the right and the responsibility to take control. When it comes to meetings or other interactions, most people know that the way to take control of the situation is not by shouting the loudest, but by using clearly established techniques and rules. Being an expert witness is just a different kind of meeting, a way of communicating, and there are rules to be effective and be in control. The purpose of this article is to give you the rules and techniques to help you and your expert witness in a construction dispute.
Rule #1 – Instruct Your Expert To Take Their Time.
The first thing an expert witness should always remember to do is slow down and control the pace of the questioning. Lawyers often come with a strategy that involves rapid fire question and answer in the hopes that the witness will make a mistake that can be used to strengthen the opposing lawyer’s case. This tactic is easily counteracted by a witness slowing things down and taking time to think through an answer before giving it.
Rule #2 – Remind Your Expert They Are Making A Record.
It is important to remember that everything said as a witness is going to be recorded.
Every answer given in a deposition or in trial will be used by each side and can either you’re your case, or it can hurt it. It is crucial that witnesses remember to think through answers and to convey them as intended. This will be very difficult to master but is vital to the process.
Rule #3 – Tell The Truth.
While this initially seems obvious, it is often much harder to do than anticipated. This is
because telling the truth in an expert environment is a very narrow concept. Answers given in this setting should be restricted to only what the witness saw, heard or did.
Rule #4 – Be Polite.
The lawyer sitting across the table will frequently try to attack the credibility of a witness.
In order to do this, the lawyer may personally attack the witness. If a witness becomes hostile or defensive it is unlikely they will be thinking clearly and can say things that may be misconstrued. Stay focused and be polite. This will allow the witness to continue to control the pace and flow of the questioning to say what they intend to.
Rule #5 – Responding To Vague Questions.
It is imperative that a witness not respond to any questions they do not understand.
Don’t be afraid to speak up an say “I don’t understand your question.” If a question is vague or unclear, they must simply ask the lawyer to restate it or rephrase it. It is more important to take a little more time and truly understand the intent of the question, than guess or speculate when answering.
Rule #6 – If The Witness Does Not Remember.
Situations will arise for a witness where an attorney will ask a question the answer to
which the witness has no recall. Litigation often carries on for years and it can be difficult to recall certain details if questions are directed later on in the process. If a witness is presented with a question they do not remember, it is important to say “I don’t recall” and stop. Remember this is not a test; they are not being graded on how much they remember.
Rule #7 – Do Not Guess.
While in daily life it is appropriate to guess or infer particular things into a conversation, it is extremely dangerous to do this as a witness. A witness is only expected to answer to the best of their ability as to what was seen, heard or done. A witness should not take it upon them self to try and answer questions if they do not know the answer.
Rule #8 – Do Not Volunteer.
The rhythm of a witness should ultimately be “question, listen, pause, answer, stop.” The lawyer may ask broad questions in the hopes of discovering new information but it is critical the witness stick strictly to the question they are presented with.
Rule #9 – Be Careful With Documents.
Oftentimes lawyers will use documents to supplement their arguments or to ask specific
questions. It is important that the witness treat these documents mechanically and keep in mind documents are just written versions of what someone believed. There is a simple, unvarying protocol witnesses should follow when asked a question relating to a document: (a) ask to see the document. Don’t allow anyone to draw your expert witness into a debate with a document without the document being in front of you. (b) It is important the witness read it. The three issues that will pertain to any document are credibility, language and context. (c) The witness must ask for the question again. It is basic fairness, once the lawyer has read the document and picked a small piece to talk about, the witness be awarded the same time to review the document and answer.
Rule #10 – Use Your Lawyer.
A witness’s strongest ally will be his or her lawyer. You – as the lawyer – is there to object to any questions the witness shouldn’t be answering and are also aware of what the goals in the litigation process are. It is important the witness utilize their lawyer and ask questions if they are unsure of anything throughout the process. While the lawyer cannot answer the questions for the witness, you are there for support and will be the best tool to get the desired results.
Remember, these rules will not come easily. Being a good expert witness involves acting and speaking contrary to what is typical in the everyday world. The rules conflict with what your expert is used to and are often counter-intuitive. But, if they are practiced they can impose a degree of discipline and control on the legal process that makes it significantly more fair and productive. I hope that when you find yourself using an expert witness in a construction dispute these simple rules will help your case.
Kent B. Scott is a shareholder at the Salt Lake City based construction law firm of
Babcock Scott & Babcock, PC. Licensed in Utah, and all levels of Federal Court, including the U.S. Supreme Court, his practice focuses exclusively on the construction industry. He can be reached at kent or (801) 531-7000.

Insurance Coverage Litigation – Insurer And Policyholder Perspectives

Mark Miller | Miller Friel PLLC | June 19, 2018

Insurance Coverage litigation may be, by some, considered a last resort. That is, a process to enter into when all other avenues of settlement have failed. In certain situations, however, insurers file early declaratory judgment actions. In others, policyholders sue soon after receipt of a denial of coverage letter. There appear to be other considerations at play.

The stakes can be high for both insurers and policyholders, and the perspectives on litigation from both the insurer and policyholder perspectives are seldom discussed together. Here, two insurance coverage litigation adversaries candidly discuss what factors and considerations should go into insurance coverage litigation.

To understand better what goes into insurance coverage litigation cases, we put together a panel of two insurance trial experts in the field, Deborah L. Stein of Simpson Thatcher, (addressing the insurance company side of the equation), and Mark E. Miller of Miller Friel (addressing the policyholder side of the equation). The full course is available from PLI and the PowerPoint for the presentation is linked here. Insurance Coverage Litigation PLI

Six topics were covered:

  • Pre-Litigation – what goes on prior to filing suit;
  • Filing a Complaint – what drives the decision;
  • Motions to Dismiss – valuable to both sides;
  • Discovery – using it effectively;
  • Summary Judgement – a critical juncture;
  • Trial – best practices and perspectives.

At the risk of oversimplifying, here are some of the highlights on the competing policyholder / insurer perspectives on insurance coverage litigation:

1. Pre-Litigation – what goes on prior to filing suit

Compile information;
Correspond with policyholder;
Evaluate dispute, jurisdiction, timing of claim issues.
Full evaluation of the claim – law, facts;
Send well-drafted letters to insurers refuting denials;
Compliance with policy conditions, even if waived;
Develop strategy to maximize recovery.

2. Filing a Complaint – what drives the decision

Issue of first impression;
How clean are facts and law;
Duty to defend law;
Duty to indemnify law;
Coverage issues vs. valuation issues;
Key question – will filing suit maximize legal recovery. Look at:
a) Choice of law;
b) Law of jurisdiction
c) Risk of being sued first
d) Insurer reputation
e) Insurer conduct / bad faith
f) Reasons for denial (potentially legitimate vs. industry custom and practice;
g) Overall case strategy.

3. Motions to Dismiss – valuable to both sides

Case specific – be selective in filing;
Possible filings for:
a) Jurisdictional and standing issues;
b) Whether claimant is an insured;
c) Timing of injury (outside of period);
d) Undisputed law and facts;
e) Bad faith;
f) Statutory claims handling causes of action.
File if insurer filed suit in wrong jurisdiction;
Care taken so complaints cannot be dismissed.

4. Discovery – using it effectively

Build your defenses and themes from the discovery you produce and obtain, but don’t force a story;
Document Requests – think about types of documents you need; request further documents in depositions;
Interrogatories – Use strategically (identification of documents, witnesses, facts); untargeted interrogatories not helpful;
RFAs – look for discrete admissions; use for authentication;
Depositions – usually the most effective tool; prepare, prepare, prepare; remember that you are still discovering.
Focus Discovery on elements of proof at trial;
Offensive Discovery – use it to build the story of improper denial; don’t waste time taking 30(b)(6) depositions;
Defensive Discovery – this is where cases are lost; prepare witnesses properly, as insurance issues are too complex to understand without preparation; pay extra attention to those that know about insurance (risk managers and brokers);
Know the rules; be prepared;
Recognize that no document has ever spoken for itself;
Think about what documents you need authenticated, and what documents you don’t.

5. Summary Judgement – a critical juncture

Frame issues wisely;
Consider purpose: resolve dispute, avoid trial; knock out claims; obtain direction from court;
Evaluate facts and law;
Know undisputed facts necessary for motion;
Be true to record; don’t overreach.
Overall goal is to get to trial;
Consider proactive motions such as duty to defend motions;
Motions and responses need to be drafted so the Court comes to the conclusion that you are right;
Insurance jargon and insurance complexities are not your friend.

6. Trial – best practices and perspectives

“Your trial presentation wasn’t complicated enough,” said no one ever;
Keep it simple;
Know elements and evidence; consider burdens;
Prepare order of proof;
Remember the big picture;
Humanize witnesses; don’t be over-technical and don’t stretch;
Don’t overuse documents.
Trial preparation starts on day one, as everything that is done is for the purpose of trial;
Develop case theme based on discovery;
Simplify case to its essential elements and tell your story;
Be likable, interesting, and nice;
You are painting a picture. You decide what to put on the canvas. Opponent will try and mess up your beautiful painting. Don’t let this happen.

Although there is enough material on any one of these topics to fill an entire CLE course, this CLE is a good start for in house counsel faced with the task of managing either insurance coverage litigation or an insurance claim. Moreover, policyholders seldom get the insurance company counsel perspective, which is always valuable when assessing a claim. All that and more can be found in this course.

The most important information I got from presenting this course is:

  1. Claim denials can be reversed, but sending a nasty letter will not do the trick.
  2. Rather, well-crafted letters rebutting each and every error made in an insurer’s denial letter is the way to go. This requires mastery of the facts and law.
  3. Prepare for trial from the moment you become aware of the claim.
  4. Letters are drafted for the Court.
  5. There are ample opportunities to make mistakes, and policyholder self-inflicted wounds are the most common way that insurance coverage cases are lost.
  6. Develop your story, and refine that story through discovery.
  7. Push for trial. If an insurer wants to settle, they know who to call.
  8. When preparing for trial, think about painting a picture for the judge and jury. You decide what colors to use, and what to put into the record. Insurers will try and mess up your painting. Don’t let them.


New Louisiana Law Requires Public Entities to Pay Interest on Late Payments to Contractors

Mark W. Mercante and Nicholas R. Pitre | Baker Donelson | June 20, 2018

On May 30, 2018, Louisiana Governor John Bell Edwards signed into law Act No. 566 of the 2018 Regular Session, amending Louisiana Revised Statute Section 38:2191(B) effective August 1, 2018, to provide for interest on late payments by public entities. Under the amendment, a payment is considered late and interest begins to accrue 45 days following the public entity’s receipt of a proper request for payment. Interest is set at 0.5 percent daily, not to exceed 15 percent. The amended statute will require contractors to distribute late interest payments among the contractor and subcontractors in proportion to the principal amount due within ten days of the contractor’s receipt of an interest payment.

The text of the amendment is set forth below (bold and underlined words are additions to prior law; no words were deleted):

B. (1) Any public entity failing to make any progressive stage payment within forty-five days following receipt of a certified request for payment by the public entity without reasonable cause shall be liable for reasonable attorney fees and interest charged at one-half percent accumulated daily, not to exceed fifteen percent. Any public entity failing to make any final payments after formal final acceptance and within forty-five days following receipt of a clear lien certificate by the public entity shall be liable for reasonable attorney fees and interest charged at one-half percent accumulated daily, not to exceed fifteen percent.

(2) Any interest received by the contractor pursuant to Paragraph (1) of this Subsection shall be disbursed on a prorated basis among the contractor and subcontractors, each receiving a prorated portion based on the principal amount due within ten business days of receipt of the interest.

The Supreme Court Narrows Its Holding in American Pipe & Construction Co. v. Utah

Ryan Vanderford and Mark D. Litvack | Pillsbury Winthrop Shaw Pittman LLP | June 18, 2018


  • The Supreme Court’s decision in China Agritech, Inc. v. Resh cements a new limit on the filing of successive class actions.
  • Tolling provisions established in landmark American Pipe decision do not extend to individual class members wanting to file a new action on behalf of others after the statute of limitations deadline has passed.

In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554 (1974), the Supreme Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 (1983), the Supreme Court clarified American Pipe’s tolling rule by holding the rule is not dependent on putative class members intervening in or joining an existing suit; it includes putative class members who, after denial of class certification, “prefer to bring an individual suit rather than intervene … once the economies of a class action [are] no longer available.”

At issue in China Agritech, Inc. v. Resh, No. 17-432, 2018 WL 2767565, at *3 (2018) was whether the American Pipe tolling rule applies only to subsequent actions brought by a previously absent class member on an individual basis, or whether it also extends to subsequent class actions filed by previously absent class members.

On Monday, June 11, 2018, the Supreme Court unanimously refused to extend its American Pipe tolling rule to subsequent class actions, holding, “American Pipe does not permit a plaintiff who waits out the statute of limitations to piggyback on an earlier, timely filed class action.” Id. at *6. “[T]here is little reason to allow plaintiffs who passed up those opportunities to enter the fray several years after class proceedings first commenced.” Id. at *7.

The Court reasoned that “[t]he ‘efficiency and economy of litigation’ that support tolling of individual claims do not support maintenance of untimely successive class actions.” Id. at *6 (internal citations omitted). The Court fleshed out the competing efficiency arguments between successive individual claims versus successive class claims, noting:

American Pipe tolls the limitation period for individual claims because economy of litigation favors delaying those claims until after a class-certification denial. If certification is granted, the claims will proceed as a class and there would be no need for the assertion of any claim individually. If certification is denied, only then would it be necessary to pursue claims individually.

With class claims, on the other hand, efficiency favors early assertion of competing class representative claims. If class treatment is appropriate, and all would-be representatives have come forward, the district court can select the best plaintiff with knowledge of the full array of potential class representatives and class counsel. And if the class mechanism is not a viable option for the claims, the decision denying certification will be made at the outset of the case, litigated once for all would-be class representatives.

Id. The Court also noted that Federal Rule of Civil Procedure 23 “evinces a preference for preclusion of untimely successive class actions by instructing that class certification should be resolved early on.” *7 (citing Fed. R. Civ. P. 23(c)(1)(A)).

The Court found a contrary holding would allow the statute of limitations to be extended “time and again; as each class is denied certification, a new named plaintiff could file a class complaint that resuscitates the litigation.” Id. at *8. While “[t]he time to file individual actions once a class action ends is finite, extended only by the time the class suit was pending; the time for filing successive class suits, if tolling were allowed, could be limitless.” Id.

While the Court’s decision more clearly defines the limitations period for potential liability on a classwide basis, it may also lead to more protective class action filings by plaintiffs apprehensive about impending limitations deadlines.

Conditions Precedents in Construction Contracts

Kenneth M. Block and Joshua M. Levy | New York Law Journal | June 19, 2018

Given the fast-paced nature of most construction projects in New York City, strict compliance with the minute details of each contract clause often falls low on the list of the parties’ priorities. Although the parties can often fulfill their obligations through substantial compliance with an agreement’s terms, under certain circumstances, even a minor deviation from the contract’s requirements can forfeit a party’s rights or benefits.

In a prior article, we discussed conditions precedent in the context of notice provisions, but conditions precedent can operate in any form. (See, Kenneth M. Block, Enforcement of Notice Provisions NYLJ, Sept. 11, 2013, p. 5, col. 2). In the context of construction, provisions related to defective work, change orders, dispute resolution and delay claims are often drafted as conditions precedent. This article will explore the differences between typical contract terms and those that rise to the level of conditions precedent, the latter requiring strict compliance to avoid forfeiture.

Conditions Precedent

A condition precedent is “an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.” Merritt Hill Vineyards v. Windy Heights Vineyard, 460 N.E.2d 1077 (1984). Conditions precedent are distinguishable from promises as conditions precedent contain language that mandates strict performance and sets forth clear consequences for noncompliance. Barsotti’s, Inc. v. Consol. Edison Co. of New York, 680 N.Y.S.2d 88, 89 (1st Dep’t 1998). While New York contract law requires the breach of a promise to be material or prejudicial to release a non-breaching party from its duties under the agreement or forfeit the breaching party’s rights, conditions precedent “must be literally performed; substantial performance will not suffice.”MHR Capital Partners v. Presstek, 912 N.E.2d 43, 47 (2009). Failure to comply strictly with the requirements of a condition precedent functions as a waiver of the right or obligation the condition preceded. Kingsley Arms v. Sano Rubin Const. Co., 791 N.Y.S.2d 196 (3d Dept. 2005). (It should be noted that, pursuant to CPLR 3015(a), when a defense to an action is based on the failure to comply with a condition precedent, the denial of performance “shall be made specifically and with particularity.”)

Applications of New York Law

In Archstone v. Renval, a developer sued its contractor over a deposit demanded by the contractor and which the developer claimed was paid under duress. Archstone Dev. v. Renval Constr., 156 A.D.3d 432 (1st Dept. 2017). The governing contract was AIA Document A201-2007 that required mediation “as a condition precedent to binding dispute resolution.” The First Department upheld the lower court’s dismissal of the action without addressing the merits of the case simply because the developer failed to seek mediation. Despite the developer’s substantial compliance with all the other conditions precedent to the claim, its failure to seek mediation did not meet the requirement of strict performance and the clear consequence set forth in the contract was the developer’s inability to maintain the court action.

Likewise, in Schindler Elevator v. Tully Construction, a subcontractor brought suit against a contractor for delay damages it incurred in performance of its work. Schindler Elevator Corp. v. Tully Const. Co., 30 N.Y.S.3d 707, 709 (2d Dept. 2016). The relevant subcontract required the subcontractor to submit “within forty-five (45) days…and every thirty (30) days thereafter…verified statements of the details and amounts of such damages, together with documentary evidence of such damages” further stating that failure “to strictly comply with the requirements…shall be deemed a conclusive waiver…of any and all claims for damages for delay…” Although the subcontractor produced letters and e-mails it had sent the contractor making the contractor aware of the delay claims, the communications did not contain verified statements nor were they supported by documentary evidence of the damages. Accordingly, the Second Department overturned the lower court’s dismissal of the contractor’s motion for summary judgment and dismissed the subcontractor’s claim. Having failed to comply strictly with the condition precedent, the subcontractor effectively waived its right to claim damages for the delays.

By contrast, in Facilities Development v. Nautilus Construction, a surety appealed the dismissal of its motion for summary judgment to dismiss an action by an owner on the grounds that the owner’s failure to require its contractor to obtain fire insurance prior to the start of work was a condition precedent to the performance bond’s payment. Facilities Dev. Corp. v. Nautilus Const. Corp., 550 N.Y.S.2d 127 (3d Dept. 1989). While the contract did require the contractor to obtain fire insurance, no conditional language was used nor any consequence for failure provided. The court held that the fire insurance requirement could not be construed as a condition precedent as it was just “one provision among several that the parties intended to be performed.” Without the necessary conditional language or explicit consequence for failure to perform, the fire insurance requirement was only a promise and did not require the literal performance demanded from an express condition precedent.


Those entering into agreements for construction should be vigilant about conditional contractual language—especially if the conditions state a consequence for failure. Words such as ‘until,’ ‘if,’ ‘provided’ and (most obviously) ‘as a condition precedent’ are indicators of a condition precedent and will require the strict performance discussed in this article. Developers, owners, contractors and subcontractors performing work under agreements with such terms should be certain that their performance literally complies with the condition precedent to avoid the forfeiture of any rights or benefits under the agreement. Even substantial performance, as demonstrated by the subcontractor in Schindler, will be insufficient to prevail on a contract claim. In certain instances, such as Archstone, a court may not even consider evidence as to the merits of the claim if the condition precedent has not been strictly satisfied.

However, conditions precedent can be advantageous for both owners and contractors if used properly. They are ideal for situations where precise performance is critical to the success of a project, allowing the parties to delineate clearly the performance required, such as the timely and detailed submitting of change orders or the prompt notice of a potential delay. Nevertheless, if used incorrectly or—worse yet—inadvertently, the unintended consequences could be disastrous and often irreversible.