How Experts (and Attorneys) Have Shot Themselves In The Foot! (Part 1)
Over the past thirty-five years, the author has worked as an engineer, manager and executive on construction projects valued at approximately $15 billion, and has provided consulting and expert witness services on projects valued at an additional $15 billion. The closer I get to the end of my construction industry career, the more I feel the need to share the essence my experiences with clients and potential clients, so that they can benefit from the many valuable lessons learned on these projects. It is in this context that I am initiating the first in a series of articles dealing with the many and varied ways in which causation and damages "experts" have shot themselves in the foot, e.g., how they (and counsel) have screwed-up in disputes.
Chapter I of this series will address areas such as causation and damages expert qualifications and impartiality. Future chapters will address injuries resulting from deficient methodologies.
The author is many things, but not naÔve, and fully expects to be deposed by an associate attorney about these articles in the future. Therefore, due care will be used herein to ensure that the author does not shoot himself in the foot!
Construction Experts Lack of Qualifications
Lured ostensibly by the prospects of immediately higher income, we encounter a troubling number of consultants who have chosen to graduate from college, skip traditional employment with an owner or contractor in estimating, project management, superintendence or engineering, to instead become a consultant. Although potentially financially rewarding in the short-term, this career path has many shortcomings and creates great risk for both the individual and his/her clients.
While these consultants may have been trained to use Primavera and CPM techniques in "chronicling" the effects of certain events on a CPM schedule, they will have no true industry experience in, or supportable basis for, evaluating and assigning responsibility for causal events in analyses of delay, acceleration, labor productivity, damages, etc. At the end of the day, they are likely to be skewered and rotisserized by skilled counsel and shown to be mere "technicians", whose opinions on causation and/or damages should be given little, if any, weight by the panel, court or jury.
Deposition is of course the critical time for the examiner to learn about the "expertís" experience, or lack thereof, because such shortcomings have often been deliberately excluded from the witnessís curriculum vitae. Because most cases settle prior to formal hearings, these consultants may have successfully navigated their way through a number of un-confrontational depositions before finally testifying at trial. Then, in the heat of the battle, their absence of construction experience become the basis for their being totally discredited or being prevented by the court from testifying, resulting in wasted fees and a poor outcome for their client.
Accordingly, we often recommend that counsel resist stipulations to expert qualifications, particularly in circumstances similar to those discussed herein. In our experience, such stipulations are usually used in a poorly veiled attempt to level the experience "playing field", rather than to save hearing time. Because the trier of fact may apply pressure to accept the stipulation, we often include a one-page experience summary graphic in our direct examination materials.
As discussed in our presentation at the Construction Superconference last month, counsel may be held liable for retaining an "expert" who is subsequently prevented from testifying, because the court has ruled that the expertís qualifications fail to meet the requirements of Rule 702 and Daubert/Kuhmo tire.
Straying Outside Area of Expertise
The problems experts encounter in this area are similar to those discussed above. However, they are also different in that the individual has chosen to venture outside the field in which they might actually have some recognized expertise. Some of the worst foot wounds here have occurred in cases where cost accountants have also been designated as damages experts and have been asked to testify to causation. These individuals may have survived had they only done what pure construction accountants should do; account for those costs charged to the project. Their demise resulted from counsel's direction to have them testify to "why" the costs were incurred.
Labor productivity analyses also represent high risk undertakings for the unqualified consultant. An expert should be on relatively safe ground here if he/she has:
- Worked as a manager in the field for a contractor or owner, i.e, ARAMCO, Fluor, Bechtel, etc., developing, implementing and maintaining productivity management systems
- Studied and mastered key studies, texts and treatises
- Has otherwise acquired the necessary knowledge, skill and experience described in rule 702
Unqualified labor productivity consultants have caused self-inflicted wounds in numerous ways. For example, consultants have:
- Failed to analyze or understand the bid basis of their clientís material and labor factors;
- Based lost labor productivity claims based on industry studies which had little, if any, relevance to the alleged cause of the loss;
- Never even read the study upon which their claim relies, but rather have simply included on a chart or conclusion from the study, book or trade publication;
- Misapplied studies of mechanical and electrical trades to claims in the civil trades;
- Applied the measured mile technique to too great a spectrum of trades, types of work and accounts;
- Failed to account for noncompensable causes of losses; and
- Claimed for more manhours than are available to be recovered.
Professional liability aside, it seems safe to assume that these clients must have been stunned to discover that their claims were of little value.
Lack of Sufficient Impartiality
Subscribers to this newsletter might agree that the most common and easiest trap for an expert to fall into is to become unreasonably partial to the clientís position and arguments. Of course, both experienced and inexperienced experts and consultants have been guilty of abandoning objectivity and adopting a clientís unbalanced view of the case. At the risk of overstating the obvious, it seems plausible to conclude that such behavior often results from the consultantís conclusion that he/she would not be retained unless he/she agreed substantially with their clientís key arguments.
Such partiality can manifest itself in the work of any type of expert. However, as was the case with our presentation at the Construction Superconference last month, the thrust of this series of articles is on non-scientific analyses such as delay, labor productivity, damages, etc.
Regarding delay analysis, the decision to exclude non-excusable delays is an all too common element of many claims and expert reports. Such strategy may be partially defensible in change order negotiations or situations where the party is exclusively focused on settling the dispute and is unwilling to pursue a formal dispute. On the other hand, this approach can lead to disaster, successful dispositive motions and wasted fees.
Part 2 will be issued in a few weeks on foot injuries resulting from deficient expert analytical methodologies.