Rethinking the Role of Technical Experts in Pre-litigation Dispute Resolution

Thanh Do and David Ojala | Forum on Construction Law

Construction disputes do not always require an expert; however, an expert is typically sought if the dispute involves particularly technical or complex issues that a lay person (including counsel and triers of fact) cannot readily understand. When is the most appropriate time to call upon a technical expert in a construction dispute? Most will turn to technical experts only after the dispute has advanced to the point where damages are high and litigation or a more formal ADR process is the likely path to resolution. Many also believe that a technical expert is required mainly for testimony in court, and therefore, late appointment of an expert shortly before trial is the most economical decision, but in many cases this may not be true. It is becoming more and more common for attorneys to retain an expert early, and the pre-litigation phase is arguably the best time to do so.

Pre-litigation Phase

During a pre-litigation or claim preparation phase, a technical expert typically serves as a “consulting expert” for one of the parties in the dispute, someone who can help evaluate any technical issues in dispute and opine on the relative strengths and weaknesses of proposed claims or positions. Another way an expert may be involved is to serve as an “independent evaluator” or a member of a “dispute review board,” jointly appointed by the involved parties, to advise on the merits of each party’s position based on the position papers and supporting information provided by the parties. Regardless of the role the expert may take and by which party the expert is retained, this process usually kicks off “after the fact” that is, when the dispute has led to large damages and/or delays. In many cases, it may already be too late for the expert to show value because the parties may already have experienced a significant economic loss, both parties may share significant fault in the escalation, and neither party is likely to clearly prevail in a settlement or litigation.

Rather than wait until this point in the dispute, we have seen the dispute resolution process be more effective when parties like owners, construction managers, design-build entities, and others retain experts earlier, even before a claim is fully formulated and a formal dispute resolution process has begun. Ideally, this kicks off when the dispute is just starting to rear its head as a disagreement, damages may not be fully formed or realized just yet, and the sides may not yet be entrenched in their positions. In this situation, the technical expert serves as a neutral third party who can weigh in on the cause of a problem and help to mitigate or resolve it (such as by performing independent design peer-review and developing a remediation plan to address the identified problems) before it escalates into a full-blown dispute in need of trial, arbitration, or formal mediation.

In this role, the expert serves as a neutral fact finder, as well as a source of technical insight. The expert plays the role of an independent evaluator or a dispute review board member by hearing each side and weighing the merits of each position, but at the same time, gets more involved in the technical nuts and bolts like a consulting expert to get to the bottom of the cause. And ideally, rather than just stop at finding the cause of the problem, the expert becomes part of the solution by proposing ways to get things under control, and potentially avoid similar problems from arising during the remainder of the project. The use of an expert in this setting has the potential to be highly cost-effective because one of the objectives is to prevent escalation of the damages that initiated the dispute in the first place. If damages are low to begin with, and stay below reasonable cost contingency levels, there may be little sense in pursuing costly recovery. A skilled and amiable expert, combined with a measured facilitator (perhaps inside or outside counsel for the owner or construction manager), can also encourage all sides to engage in solving the problem collaboratively, which can further expedite the resolution and help heal the bruises of any initial finger pointing. It can turn what might have been a failure into a success story and a triumph of teamwork.

Case Study

As an example of this sort of early expert involvement, the author was engaged by a construction manager at risk to help resolve a pair of disagreements between the project structural engineer and steel subcontractor, both of which threatened increasingly large repair costs and delays. One dispute involved widespread, seemingly random weld cracking throughout the project, for which each side blamed the other, with proposed or attempted repairs (most failing) often reflecting this finger-pointing. The other dispute involved steel assemblies that were surveyed to be out of level after installation, alternately being blamed on improper design and improper fabrication. The author was given an opportunity to review relevant documents, tour the site, speak to both parties, and perform some analysis. The author was able to discover a pattern in the seemingly random weld cracking that allowed the engineer and fabricator to focus their attention and develop alternative weld procedures and details to repair existing cracks and prevent future cracks. They also performed an analysis and facilitated load testing and surveying of the questionable assemblies to show that the appearance of out-of-level assembly was a result of benign construction tolerance issues, avoiding the need for costly replacement or retrofit. The final result was cooperation between the engineer and steel subcontractor, a halt to the escalating repair costs and delays, and a much less painful process in the long run for all sides.

Food For Thought

Before implementing this strategy, there are several questions that the involved parties and their counsel might consider:

  • How should parties that propose this type of dispute resolution broach the subject to their at-odds colleagues?
  • Like the engagement of an independent evaluator or dispute review board, can this type of process be written into contracts or teaming agreements?
  • Should everyone involved have a say in selecting the technical expert, or a right to veto the proposed expert?
  • What agreements need to be in place to encourage open and honest cooperation in the resolution process while protecting the rights of each party should litigation occur down the road? Is the potential for reducing the damage of the dispute enough encouragement for the parties to participate openly?
  • What happens if the involved parties do not cooperate or willingly provide necessary information to the jointly appointed technical expert?
  • If negotiation is unsuccessful and the claim proceeds to subsequent proceedings, such as litigation, what role might the technical expert be able to take? Might they hold any liability?

Conclusion

Regardless of the potential challenges, this kind of early expert engagement has the potential to facilitate dispute resolution and is worth exploring further by consultants and attorneys, as it aims to help all involved parties toward a positive outcome and to minimize costs before they become excessive. For us experts who are also practicing designers, this is also an opportunity to take lessons learned and apply them to future projects, preventing future disputes and bringing a type of deep satisfaction that our more traditional expert engagements cannot quite match.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

The Importance Of Engaging Design Professional Experts Early, With A Focus On Massachusetts Law

Jay S. Gregory | Gordon Rees Scully Mansukhani

In any Massachusetts case alleging negligence against a design professional, an expert witness on the topic of liability is a critical, early consideration. Given the expense of expert witnesses, counsel representing design professionals are wise to evaluate (1) the need for an expert, (2) the timing of the engagement of an expert, and (3) the scope of the expert’s services.

To begin, not every allegation of negligence against a design professional necessitates an expert opinion. “The test for determining whether a particular a particular matter is a proper one for expert testimony is whether the testimony will assist the jury in understanding issues of fact beyond their common experience.” Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Co., 439 Mass. 387, 402 (2003) (addressing duties of an insurer). For instance, in its ruling in Parent v. Stone & Webster Engineering Corp., the Massachusetts Supreme Court noted no expert would be necessary to prove professional negligence where an electrician was injured by a mislabeled distribution box carrying 2,300 volts. 408 Mass. 108 (1990). It is reasonable to expect lay jurors to comprehend the duty of an electrician to properly label a distribution box carrying potentially fatal quantities of voltage. To the extent liability is readily recognizable to the average juror (i.e. “within the ken of the average juror”), significant cost savings are achievable by forgoing the use of an expert witness. That, however, is the exception.

Far more often the duty of care is more nuanced, and an expert is required to prove liability. For instance, “[a]rchitects, like other professionals, do not have a duty to be perfect in their work, but rather are expected to exercise ‘that skill and judgment which can be reasonably expected from similarly situated professionals’ . . . Expert testimony is generally needed to establish this professional standard of care.” LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 329 (2012). While contracts for architects, engineers, surveyors and other design professionals often expressly set forth their duties, those contractual terms are not typically sufficient to establish liability against the design professional. More explanation is required to educate the average juror on duties (written and/or implied) of design professionals.

Furthermore, design professional deviations from the common practices of the profession do not always constitute negligence. Design creativity can be “stifled” and progress in the fields of engineering and architecture could be halted if “untried configurations” subjected the practitioners to liability. Klein v. Catalano, 386 Mass. 701, 717 (1982).

Once there is a determination that an expert is necessary legal counsel ought to engage such services early. The early involvement of an expert can assist the attorney in analysis of discovery, preparation for depositions, evaluating exposure, and mediating. Tempting as it may be to delay the procurement of an expert until the point of necessity, hoping that the matter will resolve before incurring expert-related costs, it is more typically a false saving; it invites the classic conundrum of not knowing what you do not know.

That is not to say the initial engagement of an expert need be expensive. An expert can be engaged early at minimal cost. Formal written reports are not needed early in the case. Indeed, it is unadvisable to do so unless the outcome of said report is certain. An attorney experienced in defending Massachusetts design professionals can often identify liability assessments early. Even in that instance, the preparation of a formal, written opinion is typically an expensive endeavor. An informal, verbal opinion is usually sufficient for purposes of identifying available defenses (including the affirmative defenses accompanying the Answer), preparing discovery demands to other parties, responding to discovery demands and participating in mediation.

Therefore, the scope of the expert’s services is best to be left flexible. A tiered approach is often advisable. The potential of a full disclosure, suitable for purposes of Massachusetts Rule 26, must be considered. However, before that requirement is realized, an expert can be engaged on an hourly basis to review the available documents, provide insights thereon, and present a preliminary verbal opinion. Depending on counsel’s assessment of the efficiency, credibility and value of that preliminary verbal opinion, more expert services can be arranged.

Of course, an expert’s opinion (be it verbal or written) can never eclipse the role of the juror. Attorneys must be keenly observant of this foundational truth of the practice of law – an expert is merely a component of the case; it cannot be the end-all-be-all. “The role of an expert witness is to help the jury understand issues of fact beyond their common experience. Under modern standards, expert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert’s opinion touches on the ultimate issues that the jury must decide. [citation omitted] An expert may not, however, offer his opinion on issues that the jury are equally competent to assess.” Simon v. Solomon, 385 Mass. 91, 105 (1982). Moreover, the ability of an opposing party to produce a contradicting expert opinion must never be discounted.

The expert is a critical component to most cases alleging negligence against design professionals in Massachusetts. That being said, the expert need not break the bank for such a case.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Summary Judgment for Insurer Reversed Based on Expert Opinion

Tred R. Eyerly | Insurance Law Hawaii

    After the trial court discounted the insured’s expert witness and granted summary judgment to the insurer, the Florida District Court of Appeal reversed. Morales v. Citizens Prop. Ins. Corp., 2022 Fla. App. LEXIS 1831 (Fla. Ct. App. March 15, 2022).

    The insureds’ property was allegedly damaged by Hurricane Irma in 2017. They filed a claim with Citizens. Citizens sent its adjuster and eventually denied the claim because the policy did not cover damages caused by wear and tear. Further, there was no coverage for loss caused by “rain . . . unless a covered peril first damages the building causing an opening in a roof or wall and the rain . . . enters through this opening.”

    The insureds sued and Citizens moved for summary judgment. At the hearing, Citizens’ expert, a civil engineer, concluded that there were no storm-created openings in the roof. The insureds engaged a licensed contractor, Steven Delgado, who stated that he found significant damage to the roofing system and water intrusion through the roof. He observed loose shingles which were most likely damaged during Hurricane Irma, allowing for high winds and airborne debris to create small openings permitting water intrusion. 

    The trial court rejected Delgado’s testimony, finding he was not qualified to provide expert testimony as to causation. Summary judgment was issued to Citizens.

    The appellate court noted that Citizens, as the party moving for summary judgment, had the burden to demonstrate that the party moved against could not prevail. Here, the genuine issue of material fact was whether hurricane force winds created openings in the roof to allow water to enter the interior, creating damage that was covered by the policy. The insureds’ expert provided sufficient evidence to introduce a genuine issue of material fact regarding the cause of the property damage. The trial court appeared to weigh the evidence rather than determine whether a genuine issue of material fact existed. 

    Consequently, the court reversed and remanded for further proceedings.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

A Retrospective As-Built Schedule Analysis can be used to Support Delay

David Adelstein | Florida Construction Legal Updates

Delay claims are part of construction.   There should be no surprise why.  Time is money.  A delay claim should be accompanied by expert opinions that bolster evidence that gets introduced.  The party against whom the delay claim is made will also have an expert – a rebuttal expert.  Not surprisingly, each of the experts will rely on a different critical path as to relates to the same project.   The party claiming delay will rely on a critical path that shows the actions of the other party impacted their critical path and proximately caused the delay.  This will be refuted by the opposing expert that will challenge the critical path and the actions claimed had no impact on the critical path (i.e., did not proximately cause the delay). Quintessential finger pointing!

This was the situation in CTA I, LLC v. Department of Veteran Affairs, CBCA 5826, 2022 WL 884710 (CBCA 2022), where the government terminated the contractor for convenience and the contractor claimed equitable adjustments for, among other things, delay.   The contractor’s expert relied on an as-built critical path analysis by “retrospectively creating updates to insert between the contemporaneous updates.”  Id., supra, n.3.  The government’s expert did not do a retrospective as-built analysis and relied on only contemporaneous schedule updates.  Id.

The government’s expert testified he was not a fan of a retrospective (after-the-fact) as-built analysis because this analysis can lead to manipulation.  He testified that he prefers to rely on contemporaneous schedule updates versus an as-built analysis where activities are added.   The contractor’s expert countered by saying the government’s expert wants to ignore as-built facts which would warrant adjustments to contemporaneous project schedules to account for what actually occurred in the field.

Who is right?  Is a retrospective (after-the-fact) as built analysis credible?   YES, it is.  But, in an answering this question, let’s bullet point some key aspects as articulated by the Civilian Board of Contract Appeals, which need to be underscored for importance:

 The contractor “has burden of proving the extent of the delay, that the delay was proximately caused by government [owner] action, and the delay harmed” the contractor.  CTA I, supra (citation omitted).

 “Only delay on a project’s critical path results in overall delay.”  Id.

 “As as-built critical path that reconstructs schedule updates is an acceptable methodology” “[A] rigorous ‘as-built’ approach- reviewing contemporaneous evidence in hindsight to trace the activities on the actual, longest path to completion-has been endorsed by government contracts tribunals.”  Id.

 “Because we must determine why a project lasted as long as it did, we [the Board] want to know the path to the latest work – including the critical work immediately preceding that work, and just before that, and so on.” Id.

 “We reject [the government’s] accusation that retrospectively adjusting as-built schedules based on project documentation or other evidence necessarily turns the schedules into ‘fiction.’ There is, to be sure, a heavy presumption that regularly updated, contemporaneous schedules are the best evidence of project progress.”  Id.

 “[F]orensic schedule analysis is ‘both a science and an art’ and ‘not a magic wand’ but a set of techniques requiring ‘the application of an expert’s well-considered judgment in evaluating the logic of underlying the various pieces of information that support the analysis.’”  Id.

 Even if relying on an as-built analysis, there needs to be persuasive contemporaneous project documents – “[e]xpert opinions offered on certain matters that…are not supported by the record tend[] to cast a shadow on the value of other opinions concerning issues where the underlying factual matters were less clear.” Id. (citation omitted) (discussing aspects of contractor’s experts opinion that relied on an unknown extent of hindsight with interviews of the contractor’s project team which the government and the Board were not privy, and where there was not persuasive contemporaneous evidence).

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Address Anti-Expert Bias: 5 Ways

Dr. Ken Broda-Bahm | Holland & Hart

It has been a rough couple of years for science. Our newly-unmasked population seems to be more divided than ever about our ability to rely on science in applying systematic and neutral procedures in order to find reliable answers to the questions that matter. A sizable chunk of the population is primed to suspect that anyone who speaks with initials after their name is likely to be spreading BS.

Of course, there has always been a tendency for people in some quarters to downplay science as mere opinion. Particularly in a courtroom, there has always been the temptation to treat scientific testimony as simply a stance being taken to benefit one side in a dispute. But our years-long battle with the coronavirus has, I fear, left us with even deeper scars over our trust in science. When you are needing jurors to trust and follow the science in your case, it is worth devoting some thought to ways you might overcome what, for many, has turned into a habitual distrust of science. In this post, I will share my thoughts on five ways to temper that rejection when it comes to an expert’s scientific testimony.

  1. Downplay the Elitism

Yes, qualifications are important, and it is necessary to review those credentials as part of testimony. But the traditional way of covering credentials, which breaks down to a recitation of a curriculum vitae, can be off-putting. Instead of just listing jobs, degrees and awards, try to use direct examination to tell a story of how your expert came to know what she knows. If there are ways you can build bridges, by showing that the expert is a “Regular Joe” or “Jane” before or in addition to being an expert, then build those bridges. In particular, if there are ways your experts get their hands dirty in doing actual work, and not just sitting and thinking in those proverbial ivory towers, then emphasize that.

  1. Only Use Jargon When Necessary and After You’ve Defined It

It is a natural habit for experts, particularly in the academic fields, to distinguish themselves through their vocabulary. But big words distance, they don’t impress. When testifying, speak conversationally, as you would to those who don’t share your education. Often you need a particular concept or terminology to be understood, but when you do, explain it in common terms first and then supply a short hand label for it. For example:

Some organisms will target only specific bacteria, the way wolves might hunt deer, and when those organisms are gone, the previously hunted population will grow out of control — no wolves means too many deer. The concept here on a small scale is called ‘microbiotic instability.’

  1. Teach, Don’t Preach

I strongly believe that experts are influential in a courtroom, not so much when they can show that they are smart, authoritative, and accomplished, but when they can show that they are useful. The idea is not to hammer jurors with a conclusion that they need to accept, but to introduce them to the steps of finding, understanding, and trusting that conclusion on their own terms. The idea is to persuade through process, not just through authority. In other words, the message isn’t, “Believe me because I’ve studied this and you haven’t” but rather, “If you follow me logically through this process, then you are going to see the conclusion too, and you can trust that conclusion because you’ve gotten there as well.”

  1. Use Anecdotes and Not Just Data

I recently shared a post about the advantage for experts when they don’t just support their point, but illustrate it as well. The logical foundation may be in the data, but the communication step that makes it sticky and credible is often in the concrete illustration or anecdote. The reason that it works is that the example is often more quickly understandable than the underlying data, and is more easily related to the jurors’ experience.

  1. Compare Carefully

The goal of testimony is often for your expert to be better than the other side’s expert. In that situation, of course, you can’t ignore that expert. At the same time, you don’t want to critique the other side in ways that could reduce faith in science generally, including your science. That is why some of the “glass houses” critiques of expert’s (you work for one side, you charge for your time, methods are always uncertain, etc.) fall flat. If you can safely compliment one part of the other side’s analysis, then you might gain credibility by doing so. But also focus on any errors or omissions, particularly those that are internal to that experts own methodology and frame of reference. Ultimately, the goal is to teach jurors on the practical ways that your analysis is going to be more useful to them than the other side’s analysis.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.