Key Considerations for Coordination Between Attorneys and Experts

 

By Laura B. Arrigo, The Rhodes Group and Samantha L. Brutout, Dingess, Foster, Luciana, Davidson, & Chleboski LLP


Schedule analysis can be complicated, but working with your schedule expert does not have to be. Taking steps at the outset to set the stage and coordinate key factors can help attorneys and experts alike clarify expectations and achieve successful outcomes. In this article, we will review factors that help define the expert’s role and scope, as well as key points of coordination between attorneys and experts. To do so, we have framed a series of questions on this topic and incorporated responses from both the expert and attorney perspectives.

Why Engage a Schedule Expert?

Expert Answer

Owners, contractors, and subcontractors may question the expense or necessity of hiring an outside consultant to evaluate project schedules, quantify delays, or otherwise assist during the claims process. The opinions of several affected parties and consideration of a number of variables will have bearing on the decision to engage a schedule expert. Consider perhaps the simplest scenario in which formal claims have been filed, delay issues form the primary basis for the dispute, and the opposing side is engaging its own schedule expert. The decision on whether the client in this scenario should engage its own schedule expert appears to be self-evident (yes!). However, when the situation is not quite as simple, other factors become more relevant and the decision is not so clear. Of course, every client and every situation is unique, but the following considerations often play a role in the client’s decision making process:

1. Would the client or matter benefit from the incorporation of schedule expertise?

 The term “expert” is defined by the Merriam-Webster Dictionary as “having, involving, or displaying special skill or knowledge derived from training or experience.” True to this definition, most schedule experts (particularly those that specialize in construction) tend to spend the vast majority of their time dealing with delay analyses and claims situations. Therefore, through practice and by necessity, schedule experts tend to be skilled at quantifying delays with the use of industry-accepted methodologies and addressing unique delay-related claims issues. Some experts also are readily familiar with delay-related legal considerations and have experience coordinating with
counsel on these issues. While not limited to the following list, by way of example, some unique issues that may lend themselves best to assessment by a schedule expert include: planned early completion, allegations of concurrent delay, unique delay-related contract provisions, considerable mitigation, repeated changes to the scheduled sequencing, or schedule files that are known to be of poor quality. When encountering these types of issues, it may be best to seek an expert’s perspective. In addition, some experts are especially skilled at the preparation and presentation of clear, concise, and substantiated delay claims to a finder of fact or opposing party. Again, given their regular focus on delay claims and practice with respect to these types of presentations, schedule experts often can assist with creating substantiated and compelling presentations that make the issues at hand simpler and easier to understand.

2. Would an independent perspective be useful?

The answer to this question may be influenced by the status of the delay claim at issue. As with the example noted above, as the matter proceeds towards litigation, the necessity of an independent perspective generally increases. However, the value brought by an objective (and expert) perspective may be beneficial earlier in the claims process. For instance, we have had clients involve us in the claims process during the project to evaluate the substantiation of their company’s position(s) based on available project documentation. The involvement of an objective perspective at this stage of the process ultimately assisted upper management during negotiation meetings. The company representatives were not only aware of the detailed support for the claim, but they also were informed as to potential future challenges that may be encountered should they be unable to negotiate resolution of the claims.

3. What are the client’s internal capabilities to analyze the project delays?

When considering engaging a schedule expert, in some situations, the client prefers to avoid additional expense and considers its own staff capable of performing the required delay analysis. In my experience, quite a few companies have highly skilled schedulers and claims analysts on staff. When this is the case, and it is early enough in the claims process that an independent schedule expert is not necessarily required, the client should carefully consider their in-house capabilities with respect to the above noted considerations. Is their own staff objective in relation to the alleged delays? Do their analysts have an appreciation for what is considered proper substantiation? Do they have the necessary expertise on staff to address any unique delay-related issues? Maybe it does make sense to keep the analysis in-house. If so, it may be helpful to involve a schedule expert in an advisory role during the in-house delay analysis, which can bring focus to the in-house analysis.

A further consideration with respect to utilizing internal resources for schedule delay analyses is whether the proper resources are available to commit the time and effort required for the delay analysis. Often, individuals that may possess the proper skill set are high performers and play key roles in the successful execution of projects. In these cases, while internal resources may be able to perform the necessary analysis, the organization recognizes that these individuals’ time is best spent elsewhere, usually driving revenue and profits and preventing additional claims on ongoing projects.

In summary, the decision to engage an expert should be made on a case-by-case (and client-by-client) basis. The above considerations hopefully will provide some guidance in determining the right decision for each individual client and given situation.

Attorney Answer

More and more, the question of whether to hire an expert has become one of “when” instead of “if.” In the current era of construction litigation, it has become increasingly difficult—if not altogether impossible—to litigate a construction dispute without hiring an expert for at least one issue. Even if you are fortunate to have client representatives who lived and breathed (or who are living and breathing) the project to give valuable insight and information, independent experts can bring a fresh perspective to the issues and see potential pitfalls that someone closely engaged with the project may not anticipate. Seasoned experts also know how to present complex, technical issues in a manner that can be understood by laypeople, including judges and juries, which can provide an enormous strategic advantage in a complex matter.

Clients sometimes are inclined to engage in-house experts as opposed to hiring outside experts, but there can be disadvantages to having someone very close to the project act as an expert, particularly if they have limited experience with construction disputes. Another potentially overlooked consideration is whether there are likely to be limitations in providing all relevant and necessary data to the employee expert. If the employee expert only needs to review his or her employer’s data, it should be fine, but if the employee expert is going to need to review the opposing party’s data, there could be limitations on what data that employee expert is allowed to review. In cases where competitors are parties or where there is sensitive or proprietary information exchanged by the parties, protective orders may limit or even completely restrict an employee of a party from reviewing certain information. If there is any chance that information could be relevant to the analysis, you may have to hire an independent expert to ensure that the expert will have access to the necessary documents.

In my experience, the best experts are those that can be a piece of the overall case narrative while telling their own story in their own voice. A great expert will be able to offer highly technical testimony while weaving a narrative that a jury, judge, or tribunal will be able to follow and remember. It can be technical or scientific, but it must be logical and comprehensible to the average person. Ensuring the expert’s story is well aligned with the overall case strategy, however, takes a lot of work, communication, and coordination with the attorney. It is the attorney’s job to ensure that communication and coordination is occurring and that the expert has the information he or she needs to provide a compelling opinion.

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About the Authors

Laura B. Arrigo is a Project Executive in the Pittsburgh, PA office of The Rhodes Group.

Samantha L. Brutout is a Partner in the Pittsburgh office of Dingess, Foster, Luciana, Davidson, & Chleboski LLP.

This article first appeared in the The Construction Lawyer.

© 2017 by the American Bar Association. Published in Construction Lawyer Volume 37, Number 4, Fall 2017. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 

Articles published in The Expert Report are the opinions of the authors and do not necessarily represent or reflect the policies or opinions of The Rhodes Group. The Expert Report may not be reproduced in whole or in part without the permission of the publisher.