March 16, 2020 Construction Law 101

Help Me Help You: Four Insider Tips to Make Your Expert More Efficient

Tony Doganiero and Jonathan Haag

Involving experts early, giving them direct access to witnesses, and consulting with them on  deadlines and discovery requests will allow you to use experts more efficiently and therefore more cost effectively.   Drawing from experience on both the lawyer-side and consulting-side, this article explores some often-overlooked areas for expert involvement and offers tips for making the most of your expert’s time.

Tip #1 – Discuss Due Dates with Your Expert Before Finalizing Scheduling Orders

When it comes to establishing a schedule as part of a case management or procedural order, consideration of the expert is often limited to confirming the expert’s availability to attend the live hearing.  Typically, there is little discussion or coordination with experts regarding due dates for disclosures, reports, and cooperative obligations with their counterparts.  The limited consideration of expert-related due dates is understandable.  Pre-hearing schedules generally follow a logical and well established sequence.  In addition, case management or procedural orders require the coordination of extremely full schedules for multiple parties, counsel, courts, and neutrals.  The additional accommodation of an expert’s schedule may seem like an impractical luxury.  

Giving your expert the opportunity to review and comment on proposed due dates before they are finalized in a scheduling order, however, may prove a worthwhile endeavor.  You may find that the adjustment to a proposed date or deadline by as little as a week may provide a significant benefit to your expert – such as allowing the expert to avoid unnecessary conflicts, effectively manage time and personnel and ensure continuity in the team and resources dedicated to your matter.  This type of input can help optimize the conditions under which the expert’s work is performed and reduce the effort necessary—and, thus, costs associated—with performing the work.  In most instances, your expert may not require any adjustment to proposed scheduling dates, but the discussion and coordination of these due dates with your expert prior to the finalization of any scheduling order can provide opportunities for significant benefits with little or no associated costs.

Tip #2 – Seek Input from Your Expert to Formulate Discrete Discovery Requests

Lawyers are highly skilled at crafting detailed document requests and other discovery that cover virtually all records and information that might exist on a construction project.  Frequently, discovery disputes arise and the resolution of these disputes can delay the production of information needed by experts to perform their analyses.  In rare cases, discovery requests may fail to include certain data or a specific file that your expert might require.  These disputes and omissions commonly involve downloads or reports from accounting, job cost or labor databases, native versions of existing documents, and progress tracking files.  Generally, experts are familiar with the databases, software programs, and tracking files used on most projects and can clearly define or identify the information and documents they require.  By involving your expert in the formulation of document requests and other discovery, you can increase the probability of accurately targeting and timely obtaining documents and information that your experts will need to perform their analyses and formulate their opinions with relatively little additional effort or cost.

Tip #3 – Allocate Sufficient Time for the Preparation of Rebuttal/Reply Reports

The amount of time allotted to an expert to prepare a rebuttal report—as compared to an affirmative report—can be highly compressed and unnecessarily disproportionate.  Experts are often engaged long before the commencement of formal and binding dispute resolution proceedings.  And, while it may be ideal to schedule the submission of affirmative expert reports following the exchange of documents or completion of other fact discovery, affirmative reports largely rely on information that was generated or maintained by the party who retained the expert.  Accordingly, an expert may have several months – and perhaps even a year or more – to consider and prepare an affirmative report.  

Conversely, the time allocated for expert rebuttal reports can be as little as thirty days – even in cases involving tens of million of dollars in claimed damages.  Although the general basis and amount of a party’s claims may be known prior to the exchange of expert reports, the precise nature and magnitude of a party’s damages and the specific methodologies ultimately employed to determine and calculate them are often presented for the first time in an affirmative report.  Furthermore, the presentation of damages in affirmative expert reports frequently rely on summaries of voluminous project data and other key assumptions which  experts are typically asked to review, test, and verify as part of their rebuttal analysis.  Accordingly, it may be beneficial to consult your expert to ensure that an appropriately sufficient and proportionate amount of time is allotted for the preparation of rebuttal reports—even if the extra time for rebuttal might be gained at the expense of the time typically provided for the submission of affirmative reports.

Experts and their consulting practices—like the law firms that engage them—have deep and robust rosters of diverse, intelligent, and hard working talent that are accustomed to delivering high quality work product under challenging conditions.  As a result, you will most likely find that experts (like lawyers) will not complain about or shy away from an aggressive schedule or difficult deadlines.  By ensuring sufficient time for the preparation of rebuttal reports, however, practitioners can create a real opportunity for cost savings by allowing experts to evenly and efficiently maintain continuity and planned levels of personnel and resources dedicated to a particular matter.  While compressed or aggressive schedules are routinely managed successfully, they typically require the addition of people and resources working on discrete tasks or portions of the analysis—which may ultimately result in increasing overall costs even within a shorter rebuttal period.    

Tip #4 – Maximize Direct Access to Project Personnel and Fact Witnesses

The need of a testifying expert to have access to project personnel and fact witnesses is universal.   The means by which this access is provided and controlled, however, can vary greatly among construction lawyers.  On one end of the spectrum, practitioners allow direct and unfettered access between the expert and the client’s personnel.  Toward the other end of the spectrum, communications between the expert and fact witnesses are carefully managed by and communicated through the lawyer.  The diversity in approaches can be a function of forum or jurisdictional rules regarding expert disclosures and discovery, the availability of project personnel, or the personal style and preference of the practitioner.  This commentary is not intended to criticize or advocate for any particular approach.

The authors simply note that —in their collective experience—the efficiency in which testifying experts can communicate with project personnel and fact witnesses is one of the most important factors in increasing the efficient progress of the expert’s services and controlling the overall costs associated with an expert’s work.  In addition, this efficiency is maximized when the experts are afforded direct access to personnel with project knowledge on a continuous or open basis.  An expert’s analysis involves identifying project documentation, understanding available data, and testing findings and assumptions against the firsthand knowledge of the people directly involved with the project.  For an expert, important questions regarding the existence or extent of project records, the source of and support for project data and the actual conditions or events on the ground arise on a regular—if not daily—basis.  The ability of an expert to address these questions directly and in real time with project personnel can greatly reduce downtime, unproductive searches, and duplication of efforts.  Accordingly, finding ways to maximize your expert’s access to project personnel directly and freely—whether by reaching agreement with counsel to resolve concerns about related disclosures and discovery or by investing front-end time and efforts to establish a uniform and streamlined system of communication with the client—can significantly increase your expert’s efficiency and reduce overall service costs.              

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Tony Doganiero

FTI Consulting, Atlanta, GA

Jonathan Haag

FTI Consulting, Miami, FL