Project Manager’s As Expert Witness - Part 1

    Norman F. Jacobs, Jr., CSI, CPE, PMI, AACE, IIE, SAR

    Email: [email protected]

    The Construction Project Manager wears many hats  - one may be as an expert witness. Not everyone is suited by temperament, style, or attitude to act as an expert witness. Integrity, experience and hard work are the essence in this endeavor. As a sagacious Project Manager, your undertaking is to determine time and cost – not fault. The opportunity exists for all people working in the Construction Project Management fields to calculate damages claimed in construction litigation, environmental litigation, scheduling, and proving and pricing construction claims. Those who hire experts for the predominate purpose of rending services relying on their special skills, cannot expect infallibility. Reasonable expectations, not perfect results in face of any and all contingencies, will be endured under a traditional standard of conduct. In other words, unless you have bound yourself to a higher standard of performance, reasonable care and competence owed generally by practitioners in the particular profession defines the end product.

    The Use of Construction Project Managers As Expert Witness – An expert is used in construction disputes and claims to define, allocate, and identify those reasonable defects or delays when responsibility may not be readily apparent. The delay may be an enigma where the Construction Project Manager must sort out all of the delay or impact aspects and present them to the Court. There are many people who possess specialized knowledge which may be of value to the Judge and Jury in determining responsibility in a construction dispute. Expert witnesses may come from many different backgrounds. An expert provides the Judge and Jury with technical knowledge and information in the expert’s special field of study and experience. The Judge and Jury use expert testimony to help evaluate, analysis and critique the significance of basic facts. Expert testimony should be allowed if the witness is sufficiently knowledgeable or skilled within the relevant or logical field so as to be able to assist the Judge and Jury in its quest for the truth.

    Hiring The Construction Project Manager As Expert Witness – Hiring an expert who will act as an advocate for a position in a lawsuit and win the case reflects a poor image of the true position of a party. Instead, an expert should be hired to: [1] Tell the story, not to beat to death, but tell the story in a simple, appealing way. The rules of evidence make this easy, even in a  state that requires a hypothetical question, by ending the hypothetical, now Project Manager, of all the facts I gave you, tell us what’s really important. [2] Show the facts to the Judge and Jury. Include the demonstrative evidence in the expert’s testimony. Demonstrative evidence lets the Judge and Jury look at something other than lawyers, the witness, and the Judge or Jury; and helps explain the dispute. [3] Make the Judge and Jury want you to win, Start with the expert’s testimony to explain the wrong that you want the Judge and Jury to set right. [4] Explain – expert testimony is not limited to situations in which the evidence is beyond the understanding of the Judge or 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 to explain how a particular rule works or to explain why the law makes sense in a particular situation is easier under certain rules.

    Then to, a good and quality Project Manager expert witness will have several characteristics. The astute expert will be a recognized practitioner in the construction field. The ingenious expert will be able to articulate an opinion clearly and persuasively. The expert will be able to think clearly and correctly under cross-examination. Finally, a good expert witness will have contributed articles to journals and publications in the construction field. Publications should however, be reviewed for possible inconsistencies or contradictions with current opinions developed in the present case. It helps to list seminars that the expert has presented. Also it helps to know that the expert has been an adjutant faculty  in the engineering and technical department of a local university.

    Interviewing The Construction Project Manager Expert Witness – When interviewing a construction expert, any conflicts should be discussed at the initial meeting. In addition, it is important to define the client’s cost budget, including both hourly rates and expenses. Precise channels of responsibility and authority should be identified. Attorneys should keep in mind evidentiary issues that might change depending on the different types of litigation anticipated. The attorney should also consider preliminary retaining the expert, of only to assist in assisting in the discovery plan.

    Other considerations include: [1] establishing a very short time between the initial and next meeting, [2] discussing how best to use the expert’s knowledge, [3] establishing short-term goals, [4] defining specific tasks, [5] scheduling receipt of expert opinions, [6] encouraging frequent communication. When working with the meticulous Project Manager expert, the first thing one needs from a potential expert is a preliminary opinion. Does the expert support a view that conforms to the client’s position? A final opinion will not be available until the expert has studied and examined the documents and other evidence available.

    Discovery and the Project Manager as Expert Witness – using the Project Manager expert in discovery can play an important role in discovery, both in discovery of opponents and responding to opponent’s discovery request. The expert can be extremely useful in the discovery of documents, tangible evidence, and in preparation of interrogatories and deposition questions. The Project Manager expert can draft technical interrogatories and deposition questions and assist client witness in preparing for depositions.

    Preparing the Construction Project Manager Expert Witness – attorneys preparing the Project Manager expert to testify requires a great detail of work. Testifying as an expert in depositions or at a trial is not easy. To look at the correct documents, listen to each word of a question, interpret words and phase literally, phase the response so that the answer is easily understood by the Judge and Jury, sound humble yet sincere [but still act positive and certain]. And expose one’s background, education, experience, friends, and personal choices to scrutiny [if not ridicule] can be very difficult. Attorneys often do not understand how difficult expert testimony is because attorneys do not act as expert witnesses.

    To prepare the perspicacious Project Manager expert to testify, the attorney must first give the expert and opportunity to make and independent review and critique of all the documents and determine causation and responsibility. The testifying expert on one issue needs to have some understanding of the other aspects of the case, if all expert testimony is to fit together.

    In addition to the interaction and direction of the attorney, the expert may have its own required preparation. The clever Project Manager expert witness style in responding to questions during a deposition should be different from the style used at trial. Attorneys should instruct the expert witness on this difference and on how they prefer the expert to answer questions at a deposition and at trial.

    The expert should be warned that one of the purposes of a deposition is to find ways to discredit the expert’s testimony or the testimony of the other witness through the expert. Experts should also understand there is nothing inherently wrong with preparing an expert for testimony in either deposition or trial. Experts should also be confident of their own qualifications. The expert’s responsibility is to render an opinion on a complicated set of technical facts and to instruct the Judge and Jury in areas outside of a lay-persons knowledge and experience.

    Scope of work and the Construction Project Manager as Expert Witness – some of the common mistakes that attorneys make when using experts involve the scope of the experts work. One example is not defining the expert’s work. If the scope of the assignment changes, however, be prepared for fee increases. The attorney should review with the Project Manager expert to use of CPM schedules and forensic schedule analysis to define project delays.


    Norman F. Jacobs, Jr., CSI, CPE, PMI, AACE, IIE, SAR

    Email: [email protected]

    Project Manager’s As Expert Witness - Part 2: Norman F. Jacobs

    Norman F. Jacobs, Jr., CSI, CPE, PMI, AACE, IIE, SAR

    Email: [email protected]

    Questions for the Construction Project Manager Expert Witness – a question commonly asked of an expert witness on cross-examination is the expert’s reason for testifying in court. Experts should be prepared for this. A proper explanation will include reference to the fact that the expert was required to review a particular problem because of the expert’s background and education, and that after the examination the expert was required to testify as to finding and opinion. The expert should frankly admit fee arrangements for their services.

    The degree of the expert’s conviction as to the opinion is very important. The opinion must be more than possible, as anything is possible. The opinion must be at least probable or have a reasonable degree of certainty. Degree of certainty may be a game of semantics, but the correct words must be used. Words such as possible, impression, apparently, suspicion, and speculated do not express the required degree of certainty. Ask the expert: [1] how the assignment changed over time, and the reasons for each change, [2] whether there is anything that the expert would have liked to have done or seen that has not been done or seen, [3] whether the expert has completed work on the project, or whether there is more to be done, [4] how any additional information might change opinions [5] whether the expert discussed the case with other experts, and whether the other experts disagreed, what the differences were, and how the differences were resolved.

    During a Deposition, examine the Questions for Behavior and Dress – [1] answer only questions you heard and understand completely. If you don’t understand the question – say so, [2] put your responses in complete words. The deposition ends up as a written document without pictures or illustrations, [3] never guess at a response, [4] don’t argue or lose your temper, [5] pay attention to objectives. If your lawyer objects, stop talking until the lawyers settle the issue. [6] Wear clean, pressed, professional looking clothing. Appearance counts.

    The Primary Purpose of the Construction Project Manager as Expert Witness – the Project Manager must consider the primary purpose of the attorney retaining him or her. Some say, a primary purpose for retaining an expert is to enable counsel to successfully prosecute or defend a claim. Some items that the expert Project Manager may assist counsel are: [1] first, the expert may be used in preparing the case and during depositions, [2] second, the expert may be used as a witness, offering an opinion on a technical matter, [3] third, the expert can be used to counter the other’s expert. An expert who is timely retained is able to help counsel develop damage issues, assist in discovery, evaluate the strengths and weaknesses of the case, determine equity of settlement, and carry out research and other preparation to avoid surprises at trial. The dual role of the Project Manager as expert, or consultant and witness manifests itself in that the expert first educates the attorney and then educates the tier of fact.

    Basic Characteristics of the Construction Project Manager Expert Witness – the Project Manager must know the basic characteristics of an expert. The basic characteristics commonly sought in performing expert witness are: credibility, communications, education, presentation skills, knowledge of litigation, flexibility, and ability to establish the reasoning process on which the case is based. On the other hand, the basic characteristics commonly sought in an expert are: knowledge of the subject, capacity to educate counsel and play devil’s advocate, and ability to assist in discovery. An expert witness will usually have to endure extensive pre-trial and trial demands. Since a witness is frequently vulnerable to vigorous and potential embarrassing attacks, counsel should be discreet, yet honest, in warning a new expert about what is entailed in testifying as an expert witness. Before a Project Manager expert testifies, counsel should make sure that such expect has carefully reviewed, critiqued and studied all available evidence, all discovery depositions, testimony and interrogatories, and documents, records, and tangible evidence. In addition, the expert should visit the site.

    When a particular expert in a field position, such as, a Project Manager is being considered as a potential witness, an expeditious beginning is for counsel to communicate with the expert directly. Although an expert may possess extraordinary credentials in the relevant field of construction, there should be a detailed inquiry about the expert’s experience and expertise in rhe subject matter of the specific trial issues. The Construction Project Manager expert should know what to expect in the terms of evidentiary requirements, burden of proof, and methods of interrogation, in order to be fully prepared.  Does the Project Manager have articulateness in his or her personality? An expert witness’s most important service in testifying before tiers of fact is articulateness.

     Such testimony will be most likely to involve a subject matter that is not easily understood by the Judge or Jury, therefore a major task of the expert witness is to demonstrate and explain to the tier of fact, in a comprehensive manner, certain evidentiary matters.

    Background Qualifications of the Construction Project Manager Expert Witness – the Project Manager must have the right background qualifications to become an expert on construction maters. It is always helpful to have the expert prepare, verify and submit a complete resume, or curriculum vitae of such expert’s background, education, training and experience. The attorney may ask the expert to read certain recommended reading materials. Then too, the expert may ask the attorney to read certain construction reading materials. One common sense hypothesis or axiom is that the clever Project Manager expert must appear to be an objective witness who is honestly applying the facts in the case in arriving at a particular conclusion. An expert is often called upon to exercise enormous self restraints during a tough cross examination.

    Trial Preparation and the Construction Project Manager Expert Witness – in trial preparation the attorney must educate the Project Manager expert on explaining theory to laypersons.   It is axiomatic that communication between the expert and counsel must be total. Each must understand the technical facts, theories, and language used by the other. A frequent problem in preparing for direct examination is that counsel and the expert realize that the technical matter and vocabulary may be to enigmatic or esoteric for the tier of fact. Simple analogies supported by demonstrations are often effective to communicate difficult ideas. The trial attorney who has worked adequately with the expert on using understandable concepts and terminology will usually be successful in educating the tier of fact to reach a proper verdict.

    The Project Manager expert must expect and anticipate scrutiny by adverse experts. Counsel must stress, especially to an expert with little or no trial experience, that the expert’s opinion will be probed and scrutinized not only by the adverse attorney, but also by adverse experts, and that, therefore, the expert must investigate and prepare thoroughly. The expert must check with the attorney as to whether he wants the expert at the counsel table. Then too, the expert must be careful about receiving written communications from counsel since this may later be examined by the adverse party.

    Interrogation and the Construction Project Manager Expert – construction personnel need to study the qualifications required by experts in their field. The following interrogatories illustrate some of the type of questions which will elicit the relevant qualifications of an adverse party’s expert: [1] has expert had a format education or special seminars in the subject field, [2] is your expert a member of any professional or trade associations in the subject field, [3] has your expert written any books, papers, articles, or other publications in the subject field, [4] has your expert presented any seminars in the subject field, [5] has your expert practiced or worked  in the subject field for 10 years or more?

    When the attorney is preparing the Project Manager expert the meeting must include a discussion of the significance, purpose, and procedures involved in a deposition. Counsel must stress the preparing for deposition testimony is as important as preparing for the trial. In addition to reviewing and rehearsing with the expert anticipated areas of examination, counsel may wish to give the expert some basic caveats or tips, such as; to listen attentively, give a complete and concise response, practice honesty, objectivity, sincerity, and confidence, then too, the expert should refrain from guessing or speculating. The Project Manager must analysis any exhibits or documents he or she plans to use such as; fragnets, Arrow Network Diagrams, TIA – Time Impact Analysis and other graphics. Then too, evaluate any text, seminars, papers, articles referred to in the Project Manager’s testimony. Review and examine all instructing, teaching, and lecturing experience in area of expertise.

    Direct Examination and the Construction Project Manager Expert Witness – Remember during direct examination that this is a critical point in the trial. The expert has been retained by the party at a respectable fee, to testify on a certain matter. Such testimony calls on the expert’s exceptional and unique experience, training, knowledge, skill, and or education. One method of maintaining witness control is to conduct a vigorous pre-hearing rehearsal with the witness, emphasizing all areas of examination. The Project Manager must be aware of the tactics used by counsels. Several tactical factors must be considered in challenging an expert. When objection to an expert’s qualifications is made subject to a motion to strike after cross examination, there may be undue prejudice, even if counsel’ motion to strike is subsequently granted, since the expert’s opinion testimony has been heard by the trier of fact on direct examination.

    Norman F. Jacobs, Jr., CSI             email: [email protected]