Project managers as expert witnesses: Part four

by Carly Midgley | April 10, 2017 9:13 am

by Norman F. Jacobs, Jr.

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The construction project manager wears many hats, and one may be that of expert witness. Not everyone is suited by temperament or style to act in this role—integrity, experience, and hard work are essential—but there is the opportunity to price construction claims and calculate damages claimed in construction and environmental litigation, scheduling, and proving. As a project manager, the goal is to determine time and cost, not fault. The last in a four-part series[2], this article discusses what is expected of a project manager in the role of expert witness.

Those who hire experts to render services relying on their special skills cannot expect infallibility. Reasonable success—not ‘perfect’ results in the face of any and all contingencies—will be ensured under a traditional standard of conduct. In other words, unless a project manager has bound him or herself to a higher standard of performance, the reasonable care and competence of practitioners in the profession define the results.

That being said, a project manager must still be aware of appropriate ethics, and should understand the philosophy of human conduct, with emphasis on the determination of right versus wrong and the principles of right conduct.

To complete work in an ethical manner, he or she must:

• establish and maintain eminent standards of professional conduct;
• freely exchange information with members of the construction community;
• maintain confidentiality of privileged information;
• avoid conflict of interest and misrepresentation of products and services; and
• promote improvement of construction communication, techniques, and procedures.

The role of expert witness
An expert is used in construction disputes and claims to define, allocate, and identify reasonable defects or delays when responsibility may not be readily apparent. The delay may be an enigma, where the project manager must sort out all of the delay or impact aspects and present them to the Court. Some delays may be concurrent, and must be evaluated by the expert to determine which contract party is responsible.

An expert should be hired to:

1. Tell the story in a simple, appealing way.
2. Show the facts to the judge and jury, including the demonstrative evidence in the expert’s testimony. This lets the judge and jury consider something other than lawyers and the witness, and helps explain the dispute.
3. Earn the judge and jury’s support. It is best to start with the expert’s testimony, to explain the wrong the judge and jury are being asked to set right.
4. Explain the situation. Expert testimony is not limited to situations in which the evidence is beyond the understanding of the judge and jury. A real expert is a master at explaining circumstantial evidence—how the expert arrived at a conclusion is almost more important than the results.
5. Show how the law makes sense. Expert testimony involves explaining how a rule works in a particular situation.

A good project manager expert witness will have several other characteristics. The expert will be a recognized practitioner in the construction field, able to articulate an opinion clearly and persuasively and think clearly under cross-examination. He or she will have contributed articles to journals and publications in the construction field. These publications should, however, be reviewed for possible inconsistencies or contradictions with opinions developed in the current case. It may also help to list seminars the expert has presented in the field.

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Any conflicts should be discussed at the initial meeting between the construction expert and the attorney. It is important to define the client’s cost budget, including both hourly rates and expenses, and identify precise channels of responsibility and authority. Attorneys should keep in mind evidentiary issues that might change depending on the different types of litigation anticipated, and consider preliminary retaining of the expert, if only to assist in the discovery plan.

Other considerations include:

• establishing a short time lapse between the initial and next meeting;
• discussing how best to use the expert’s knowledge;
• setting short-term goals;
• defining specific tasks;
• scheduling receipt of expert opinions; and
• encouraging frequent communication.

Process
When working with the project manager expert, the first thing one needs is a preliminary opinion. Does the expert support a view conforming to the client’s position? However, a final opinion will not be available until the expert has examined the documents and other evidence available. Sometimes attorneys do not give the expert the full scope of the assignment, meaning changes may come up that cost the client additional money.

The project manager’s role as an expert witness must be taken seriously in the discovery phase, as this can play an important part both in discovery of opponents and in responding to the opponent’s discovery requests. The project manager expert can be extremely useful in the discovery of documents and tangible evidence, as well as in preparation of interrogatories and deposition questions.

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Preparing the construction project manager expert witness requires much work by the client’s attorney, as testifying as an expert in depositions or at trial is not easy. It can be difficult to look at the correct document, listen to each word of a question, interpret words and phrases literally, phrase the response so the answer is easily understood by the judge and jury, sound humble, sincere, and certain, and expose one’s background, education, experience, friends, and personal choices to scrutiny all at once.

To prepare the project manager expert to testify, the attorney must first give the expert an opportunity to make an independent review and critique of all documents and determine causation and responsibility. The expert needs to have some understanding of the other aspects of the case if all his or her testimony is to fit together. In addition to the input of the attorney, the expert may have his or her own required preparation.

The project manager expert witness’s style of responding to questions during a deposition should be different from the style used at trial. Attorneys should instruct him or her on this difference, as well as on preferred methods. The expert should be warned one of the purposes of a deposition is to find ways to discredit the expert’s testimony or the testimony of other witnesses through the expert. Experts should also be confident of their own qualifications—their responsibility is to render an opinion on a complicated set of technical facts and to instruct the judge and jury in areas outside of most people’s knowledge and experience.

Documentation
Every construction project requires detailed documentation to keep comprehensive and current records. Conscientious, orderly record-keeping involves not only maintaining the information needed to effectively manage a project, but also providing essential preparation for any contract disputes, delays, impacts, and litigation. Adequate documentation may also satisfy a requirement for a logical and supportable demonstration of cause and effect. Documentation lasts where memories fade.

In case the project manager becomes an expert witness, he or she must first examine all project documentation. He or she should consider the primary purpose of the attorney retaining him or her. Some say the primary purpose of retaining an expert is to enable counsel to successfully prosecute or defend a claim.

An expert witness may be used:

• in preparing the case during depositions;
• as a witness offering an opinion on a technical matter; or
• to counter an opposing expert.

An expert retained in a timely manner will be able to help counsel develop damage issues, assist in discovery, evaluate a case’s strengths and weakness, determine equity of settlement, and carry out research and other preparation to avoid surprises at trial. The project manager plays a dual role as consultant and witness, first educating the attorney and then the trier of fact.

Forensic documentation analysis (FDA), one of the strategies an expert witness can implement, is a critique of the project manager’s responsibilities throughout the life of the project. This analysis defines adequate documentation and will exercise the cognitive mind of the project manager.

Schedule-related documents include:

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• the work breakdown structure (WBS);
• data to input for monthly critical path method (CPM) updates;
• the original, approved CPM schedule;
• any fragnets (i.e. fragments of a CPM network) made during construction;
• resource loading data;
• meeting minutes;
• activity dollar-loading data;
• monthly narrative reports;
• float status at each CPM schedule update;
• any impacts or delays requested;
• apportionment of concurrent delays;
• examinations of all out-of-sequence activity;
• analysis of S-curve dollars, projected and actual;
• methodical queries of submittal log status;
• daily reports;
• time extensions requested and granted; and
• all CPM schedule activities.

FORENSIC SCHEDULE ANALYSIS

Forensic research involves the application of scientific knowledge to legal matters, and forensic scheduling analysis refers to using critical path method (CPM) schedule calculation methods to study and investigate events for potential use in a legal proceeding. In other words, it is the study of how actual events interacted in the context of a complex model. This is employed for the purpose of understanding the significance of a specific deviation or series of deviations from the baseline model, along with their role in determining the sequence of activities within the CPM schedule network diagram. A retrospective technique, forensic schedule analysis uses project CPM schedule updates to quantify the loss or gain of time along a logical path and identify the causes. However, it also relies on forward-looking calculations made at the time the updates were prepared. Like many other technical fields, forensic schedule analysis is both science and art. It relies on professional judgement and expert opinion and usually requires many subjective decisions—but the desired objective is to reduce the degree of subjectivity involved, and to ensure any that remains is based on diligent factual research and analysis whose procedures can be objectified. This can be done by defining standard terminology, identifying and classifying methodologies currently being used for forensic scheduling analysis, and setting minimum procedural protocols. Recommended minimum protocol for forensic schedule analysis is as follows: Ensure the data is set at notice to proceed. Ensure there is at least one continuous critical path, using the longest path criterion, starting at the earliest-occurring activity in the CPM schedule network diagram (i.e. the start milestone) and ending at the latest-occurring activity in the network. Ensure all activities—except the start milestone—have at least one predecessor and one successor. Replace controlling constraints, except the ‘start’ and ‘finish’ milestones, with logic and/or activities. Ensure the full scope of the contract is represented in the CPM schedule. Investigate and document any milestone dates or other aspects of the schedule violating the contract provisions. Document and provide each change made to the baseline for purposes of rectification. Ensure the calendars used for schedule calculations reflect actual working-day constraints, as well as restrictions actually existing at the time the baseline schedule was prepared. The successful project manager will search through the enigma of forensic schedule analysis and find the answer.

[6]Norman F. Jacobs, Jr. formed Jacobs Consultant Services in 1981 to provide a variety of construction services including cost management, schedule control assistance, project management, and claims preparation and negotiation. Prior to this, Jacobs provided design-build, construction management, and general contracting services for over 30 years, in a variety of capacities ranging from estimator to president and board member. He has chaired Virginia’s Associated General Contractors (AGC) Documents Committee, has presented seminars on construction legal subjects with the Virginia Bar Legal Committee, and is a past president of the CSI Richmond Chapter. Jacobs can be reached via e-mail at JCSCPM@aol.com[7].

Source URL: https://www.constructionspecifier.com/project-managers-as-expert-witnesses/

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