Applying goal-oriented methodologies and techniques can increase efficiency and reduce costs associated with litigation.
Photo: Karen Neoh/Creative Commons.
With surprising frequency, attorneys involved in litigating design and construction issues take a very simple, even myopic view of the use of expert witnesses. In a lawsuit that’s focused on structural problems, for instance, who could carry more authority than a structural engineer? The strategy seems straightforward: enlist the expert most closely aligned with the issue, develop their testimony, and go forward.
However targeted and economic this approach may seem on the surface, though, in the end it is extremely short-sighted. Architecture and construction are complicated processes, integrating multiple disciplines and professions—and so it stands to reason that successfully resolving disputes in these businesses would need to tap into many fields of expertise. Continuing our hypothetical example, a web of contributing factors underpins the typical structural failure incident: soil conditions, installation procedures, defective materials, jobsite conditions, and more. Relying on a single witness to address these diverse technical issues is not only problematic, it telegraphs a certain naiveté on the part of the attorney.
On the other hand, a battery of specialist witnesses is a formidable tool in court, whether it’s being heard by a judge or a jury. Assembling, retaining, and managing a credible, experienced team of experts can play a key role in achieving legal success, and there are ways to optimize its effectiveness.
Because experts are typically hired individually, they tend to work independently. Without a structure in place to coordinate and process their input, the important information they provide can be compromised or even contradictory. Written reports submitted late in the process, or that are filled with factual inconsistencies, can force a legal staff into a position of cobbling together documentation under pressure, raising the possibility of error. At deposition, insufficiently coached experts (who by nature are more technocrats than storytellers) can lapse into focusing on one another’s opinions, rather than the case at hand, creating an unprofessional impression. In the worst-case scenario, these behaviors could result in conflicting testimony that might jeopardize the outcome of a case.
To prevent this kind of confusion, we recommend adopting a program of project management when working with a team of experts.
Project management is a goal-oriented methodology that’s widely employed by the AEC industries and is starting to make inroads into law firms; its effectiveness has been tested and proven. Comprising an organized plan of action and communication, it brings a level of transparency and cohesiveness to any process. Applying project management techniques when working with expert witnesses can increase efficiency and reduce costs associated with the practice.
A number of highly formalized approaches to project management have been developed for specific businesses. Of course, some of the basic precepts of project management can be enacted without training. Among those that will be helpful in working with expert witnesses:
- Identify the stakeholders. The network of interested parties in a case where expert teams are utilized is extensive and dynamic. A system that clearly identifies professional roles and responsibilities will add clarity to the process and avoid redundant or misdirected communications.
- Agree upon a schedule. Setting up a series of realistic deadlines for receipt of expert-witness reports gives people a long- and short-term perspective on the milestones that must be met. Coordinating the delivery of information from experts can eliminate any last-minute panic, and will allow the legal team to methodically review the materials, enabling them to resolve any discrepancies in the findings and craft the best possible case for the client.
- Monitor progress. Lost lab tests and garbled interview transcripts are just a couple of the everyday setbacks that can impact a project. Delays are inevitable, but they needn’t derail making progress in developing the case. Informing all members of the team about any disruption in the timeline will ensure that the investigative process doesn’t come to a halt.
- Establish a single point of contact. Having one person in charge of day-to-day communications keeps messaging clear and minimizes the potential for misunderstanding. In addition to centralizing ongoing communications, this individual can also consolidate the production and distribution of evidentiary documents and exhibits.
The benefits of implementing a project management system for expert teams is illustrated by a recent episode where we acted as the architectural expert and overall expert manager in a forensic review case that involved million-dollar-plus claims on an unrealized residential development. At issue were adherence to regulatory processes, plat layout, overall yield and easements, and the accurate determination of development costs.
A gamut of municipal agencies, title companies, and construction firms had been connected with the project. The plaintiff retained a single representative—a real estate appraiser—to make their case for lost revenue and profit; for the defense, we assembled a team of experts from a spectrum of AEC professions, and instituted a project management structure and demonstrated overall development pro forma.
We were responsible for engaging and coordinating all of the cost and construction experts, as well as the civil, geotechnical, and appraisal experts. As we assumed the role of project manager, overseeing the production, synthesis, and distribution of the experts’ reports, the defense was the beneficiary of a 360º, fully-vetted review of the project’s circumstances and its financial implications. An additional result of the investigation—the lack of qualifications on the part of the plaintiff’s “expert”, and his inability to speak to the technical design and construction required, in turn voided much of his findings—further undermined the arguments made by opposing legal team. Once the evidence was presented in court, the case settled very quickly (and favorably) for our client, demonstrating the positive value of project management for expert witnesses.
Organization, coordination, and communication: these are the core principles of project management. Applying them to expert witnesses will improve both the efficiency and the efficacy of construction litigation.
About the Authors
John T. Jozwick is Senior Vice President and General Counsel for Rider Levett Bucknall Ltd (RLB) North America. With over 35 years experience in the construction industry, John provides advisory services to owners, contractors, subcontractors, design professionals, sureties, and attorneys relating to construction projects and disputes as an expert witness, providing alternative dispute resolution services as Arbitrator or Mediator, or providing construction dispute avoidance services as a Dispute Review Board (DRB) member, Project Neutral, or Independent Certifier.
Jeffrey G. Landtiser, AIA, CPTED is a Registered Architect and Senior Project and Claims Manager for Rider Levett Bucknall Ltd (RLB) North America. With over 29 years of experience in the construction industry, he has extensive knowledge of design, the technical development of contract documents, and resolving disputes during construction. Jeff is experienced in many building types, including the commercial, education, government, public safety, healthcare, hospitality, and residential sectors.