September 07, 2017

On Corporate Counsel's Desk: Effective Use of Construction Experts: An In-house Perspective

Brian E. Neuffer

My company’s engineers and scientists often serve as experts in construction cases.  They have shared with me some valuable insights. This article explores ways attorneys can effectively utilize experts in construction cases.

A.  How the Construction Expert Can Help: There are many benefits  to utilizing an  expert in a construction case.  Author Kevin R. Sido provides a good summary.  He describes how the expert may:

  • review and assemble construction records;
  • educate attorneys on the technical aspects of the controversy;
  • identify construction documents that should be available from other parties when preparing requests for production of documents;
  • identify construction documents that should be available from other parties when preparing requests for production of documents;
  • give input when preparing interrogatories and deposition questions;
  • analyze the quality of the design and of construction work;
  • accumulate data, prepare schedules, charts, and graphs for exhibits at trial;
  • evaluate the impact of delays;
  • determine costs and calculate damages;
  • analyze facts to determine compliance with laws, codes, and regulations;
  • advise counsel on strengths or weaknesses of the client’s position;
  • advise counsel on the clarity and simplicity of counsel’s presentations;
  • help prepare the cross-examination of the opposing expert(s);
  • provide authorities which may be used to contradict and discredit the opposing expert;
  • in a design defect case, evaluate suitability of the design and whether it conformed to the standards of the profession;
  • in a physical defect case, evaluate cause and effect, and whether the defect is design related or results from deficient construction processes. 1  

Each case is unique.  Not all of the above expertise  is necessary or appropriate in every case and case budgets are often small.  Nevertheless, I asked a dozen engineers, architects and scientists at my company if the attorneys for whom they worked had utilized them in many of the ways listed above.  The consensus was that attorneys generally had not used them as much or as effectively as they could have to benefit the case.  Following are tips from CTLGroup’s experts, in addition to the above list, for effectively using construction experts.

B.  Involve the Expert Early.   CTLGroup’s experts all agreed that engaging the right expert early in the case is good strategy.   Division 11 member Alan N. Harris, Vice President & General Counsel of ATWELL, said: “having the right expert do an early case assessment can be very beneficial for evaluating the claim and structuring the case.”2

Too often, attorneys contact our experts shortly before an expert witness disclosure deadline. By then, the pleadings are set, and fact discovery has often closed. At that point, the attorneys have missed the opportunity to use the expert to identify and build stronger claims or defenses.  For example, our experts were involved in a complex case involving concrete defects and associated construction delays.  Shortly before trial, attorneys for the contractor (defendant) hired CTLGroup. Our engineers reviewed the facts and the contractor’s defense theory.  They concluded that the contractor’s defense theory was based on an erroneous interpretation of a specification related to “joints in walls.”  Our engineers told the attorneys that the specification language was identical to ACI 301, and that the actual meaning of the specification was not what the contractor’s attorneys had presumed.  The attorneys seemed surprised and alarmed. The contractor quickly settled.  Early engagement of experts can avoid such calamities.

C.  Trusted Advisor.  Experts add more value when they are treated as valued team members and trusted advisors.  They bring clarity to technical issues. An expert can be retained confidentially as a consulting expert for an early case assessment.  They may report their findings orally to the attorneys only. As the experts educate counsel on the technical aspects, including building code/regulatory requirements, they can advise on the strengths and weaknesses of the client’s position.  This may be the expert’s most important role.  If the early assessment is “bad news” for the client, it is better to know it sooner than later. The other side will undoubtedly reach the same conclusion.  Good two-way communication is also crucial.  Experts appreciate when attorneys share with them the “big picture” so they fully understand the parties’ competing positions and how they fit in the case. They also are able to add more value to case strategy  when attorneys update them on developments throughout the case. 

D.  Give Experts Complete Construction Records. Our experts said that some attorneys “vetted” or selected only a subset of available construction records for them to review; often performed by a paralegal or junior associate.  Our experts reported, unfortunately, that certain documents that had been initially withheld turned out to be crucial records.  Time and resources could have been saved if the attorneys had given them a complete set of records at the outset.  With large projects, there may be many thousands of pages of construction documents, most of which are unrelated to the disputed issue.  In these situations, seasoned architects and engineers generally can tell you what records they need to see. It is wise to involve them in any vetting process.

E. Arrange For Site Visits. Our experts strongly recommend being allowed to visit the site. So much can depend on site conditions.  One expert said, “if I can visit the site, I can keep a lot of- ‘it could be this,’ or ‘it might be that’–out of the report!”  At the site, the expert can absorb much more than can be gleaned from photos or construction drawings.  More beneficial is when the hiring attorney accompanies the expert on the site visit. As they together inspect the site, the expert can to teach the technical aspects of the disputed issue.  An expert’s testimony will be more believable if based on a site visit than if just based on photos or methodical calculations. 

F.  Samples & Laboratory Testing. Laboratory testing of samples, cores, or failed members can greatly strengthen an expert’s report, and the ensuing testimony.  This is because testimony is based on test data, not merely on subjective opinions.  Ideally, the expert determines how many samples are taken and from which locations during a site visit.  Sometimes, it is prudent for experts and attorneys from both sides to be present when samples are taken, or when laboratory tests occur.  Laboratories vary greatly in their sophistication and quality controls.  Be sure that your laboratory has the experience, certifications, and quality controls to produce reports that can withstand scrutiny.  Some consulting firms have both high quality laboratories and also forensic consulting experts, which can yield efficiencies. 3

G. Allow Sufficient Time to Prepare for Depositions & Trial: Trial attorneys know that deposition and trial testimony are peculiar forms of communication.  Much preparation time and practice is required before some witnesses will testify confidently.  I have been surprised when our younger engineers or scientists, who have relatively little testifying experience, are asked to take the witness stand without much preparation and practice; just because the expert has a Ph.D. doesn’t mean she/he knows how to handle a scathing cross-examination.  Preparation sessions should be face-to-face, thorough and unhurried.

H.  Anticipate Potential Lines of Cross-Examination.  The expert report (if any) should include the entirety of the expert’s opinions and the basis and reasons for them. See Fed. R. Civ. P. 26(a)(2)(B)(i),(ii).  You can help your expert prepare for cross-examination by rigorously questioning about the basis for each opinion, and any assumptions made. If the expert’s assumptions are different from the opposing expert’s assumptions, producing conflicting results, ask why your expert’s assumptions are correct? If there were things not done (such as no site visit), why were they unnecessary? And if there things left undone (such as no lab testing), why not?  Discuss what the expert perceives to be the weakest points.  Explore any inconsistencies between the anticipated testimony and the expert’s prior publications.  During preparation, our experts like to review deposition transcripts by the attorney who will be deposing them.   

I.  Help With Cross-examination of Opposing Expert. Request your expert’s insights as you prepare cross-examination of any opposing experts.  Some attorneys favor experts with extensive testifying experience.  However, they may lack expertise in the narrow technical field at the heart of the issue. Discuss with your expert whether the opposing expert is really an “expert” in the relevant field. Ask for any authorities that might be used to discredit the opposing expert.

J.  Daubert Motions.  Invite input from in-house counsel if opposing counsel moves to disqualify your expert.  In-house counsel may have access to information and records that could help you defeat a Daubert motion.  We have a strong interest in protecting the reputation of our experts.

K. Payment. Try to address any payment obstacles in advance, or be ready to pay a retainer to the expert. This is especially important if ultimate payment will come from an insurance company or a third party owner, but there is a lengthy payment approval process.  You don’t want to risk the expert not appearing for your trial because the expert is upset over outstanding invoices.  

Conclusion

The above tips are far from exhaustive, but these tips would have helped me when I was in private practice.  I hope they may be of help to you.

Endnotes

1. See  K. Sido, ARCHITECT AND ENGINEER LIABILITY: CLAIMS AGAINST DESIGN PROFESSIONALS, 468-69 (3rd ed. 2006 Aspen Pub.).

2. Author’s interview with Alan N. Harris on May 8, 2017. 

The author gratefully acknowledges the time and contributions to this article of Alan N. Harris, and the following CTLGroup employees: Timothy D. Tonyan, Ph.D.; Richard Kaczkowski, M.S., S.E., P.E.; Carlton Olson, M.S., C.E.; Jon Vincent, P.E., S.E.; Elisabeth Rodenkirch, A.I.A., LEED AP BD+C; David Cook, A.I.A.; Boyd Clark, Ph.D.; Terry Willems; John Roller, P.E., S.E.; Don Broton, Dennis McCann, Ph.D., P.E.; Peter Kolf, P.E., S.E.; Mark Williams, A.I.A. of Williams Building Diagnostics, Inc.

3. CTLGroup is one such firm, providing both forensic consulting, and quality laboratory testing services.  “CTL” stands for “Construction Technology Laboratories, Inc.”

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Brian E. Neuffer

CTLGroup, Skokie, IL, Division 11 (Corporate Counsel)