Insights for Experts in Damages Cases from Attorneys in the Construction Industry
A Sampling of What Construction Law Attorneys Say They Expect from Experts
This article provides a summary of what attorneys, who are members of the Minnesota construction law section, heard at a recent CLE regarding what attorneys expect from experts.
On June 13, 2023, Michael Gregory attended the Minnesota State Bar Association Alternative Dispute Resolution Section regarding the topic of “Solve the Problem! Survey Recommendations for Effective Dispute Resolution Through Mediation and Arbitration” by Dean B. Thomas and Julia J. Douglas. These attorney-authors solicited the entire attorney population engaged in construction law. Background associated with this presentation and these authors’ study, and commentary as noted by Mr. Gregory with personal insights are provided to help the business valuer learn from a national survey of attorneys in the field of construction of what they expect from experts related to damage cases. The comments below are insightful and applicable to all experts, including business valuers.
Background
These authors surveyed every attorney in the United States associated with the construction industry. As a result of that survey, 330 attorneys responded. The authors prepared a 32-page PowerPoint presentation on this topic. Mr. Gregory is providing you with commentary based on his notes taken during that presentation and is providing his personal insights to help you as a business valuer expert.
Mr. Gregory was an expert and ran an expert witness group with up to 21 experts for seven years at the IRS. He also headed up business valuation nationally for the IRS for 11 years making recommendations on litigation cases, internal experts, and external experts for the IRS. Since leaving the IRS in 2011, Mr. Gregory has been actively involved as a member of negotiation teams and as a mediator on issues between parties in valuation ranging from millions to billions of dollars. Over his career, he has negotiated, facilitated, or mediated over 2,500 disputes.
The Survey
The 330 survey respondents answered 21 targeted and open-ended questions. The authors will be publishing a peer-reviewed article on their findings later this year. The presentation and presenters provided information on alternative dispute resolution including setting the stage, analyzing the case prior to mediation, setting your mediation up for success, effective mediation practices (evaluative mediation), ineffective mediation practices, breaking impasses, challenges, benefits, if mediation fails consider arbitration, addressing common arbitration myths, demystifying that arbitration has become too much like litigation, and what advocacy techniques arbitrators find effective and ineffective. The results indicate that both mediation and arbitration are extremely effective when applied properly. What follows are insights offered related to experts on what was found to be effective and ineffective.
Experts, Effective Techniques, and Critiques
The commentary that follows is based on Mr. Gregory’s notes of their presentation, the PowerPoint commentary presented, and his own experiences.
Experts need to be very well organized, provide testimony that is easily understandable to all associated with the proceedings, and supply contemporaneous documentation. Understandable in mediation means the ultimate decision makers, their attorneys, and other experts. In arbitration, the key party is the arbitrator.
The expert should avoid repetition within their presentation. If the expert’s commentary is presented well, this will limit the time needed for cross-examination or questioning by the other party. In direct commentary, the attorney should be asking non-leading questions if this is the format selected by the parties. Experts that are clearly advocates and appear to be paid for their testimony or that promote “junk science” are ineffective.
Generally, one of two broad approaches is used. First, organize around the issues and take on the issues one at a time. If this is the case, do not proceed to the next issue until the first issue has been exhausted with clear, easy to understand commentary that everyone (other experts, attorneys, decision makers, participants) understands. You may even want the expert to pause to see if any participants have any questions before moving on. Second, present everything in chronological order. In this approach, if there were delays, disruptions, and/or accelerations and this is part of the concerns, these need to be spelled out. It should be noted that 20 of the arbitrators recommended that, regardless of approach taken as either the first or second approach presented here, to keep everything in context and supply an overview timeline of significant events is very helpful. This should be presented and tied into either approach.
Damages are typically reduced due to insufficient proof of damages. By keeping a scorecard of damages claimed with a clear and detailed description of all damages sought—with good evidence tied together with both testimony and exhibits—this is an effective way to present your information that is easily understandable to the decision maker(s).
The experts are not there to impress anyone.
The experts need to be there to teach.
They do not need to be an advocate for the client or of their position. Rather, based on their expertise, they are there to take complex situations and explain them in a manner so that everyone can clearly understand what they did, why they did it, and to articulate all underlying assumptions and limiting conditions.
Typically, with an expert there is narration followed by some form of cross-examination. The level of informality or formality may depend on the approach agreed to by the parties. The legal term of witness conferencing has been picked up in the vernacular as hot tubbing of experts. This is becoming more common in alternative dispute resolution. Often a third party, such as a qualified mediator with expertise in the area, can mediate between the experts to help the decision maker(s) gain additional insights to make a more informed decision. Since mediation is typically an iterative process today, in a second iteration, often the experts are not involved in a follow-up iteration. They laid the starting positions for the parties to work together. Typically, in follow-up sessions the parties meet the mediator, but without the experts, to reach an amicable solution. In other instances, the experts may be able to help the parties come to a resolution without the need for additional iterations.
There is a tradeoff between being efficient and having an intended result. This balance needs to be considered to provide the information needed for the party(s) to decide without spending too much time on elements that really are not material or needed.
In arbitration, the parties need to take advantage of the expertise of the arbitrator. This is not a jury trial. By doing research on the arbitrator, and knowing the background, being respectful of everyone, not being aggressive, and assume that the arbitrator has some knowledge of construction law and practices, it is quite possible the arbitrator can make an appropriate determination. Do not use sarcasm, posturing, or be loud, aggressive, or indignant. This will only have a negative effect on the process.
Other Concerns
When testimony is unfocused and unstructured, the expert comes off as disorganized and incompetent. Rambling, being unprepared, or rude is clearly detracting from the message. Attorneys with long winded leading questions are not helpful. Something is lost when this approach is taken.
Do not assume a data dump will help your cause. Do not let the arbitrator figure it out. Rather, be as methodical as necessary and, if necessary, instruct the arbitrator on findings and the significance of those findings and how they are relevant to the damages claim in the case. Present well-organized content with a table of contents to help the arbitrator.
Redundant and repetitive questioning is irritating to the decision makers. The attorney or expert needs to move on after a point has been made.
As indicated above, do not be an advocate for the party that retained and paid you. Do not be the paid expert. Further, do not promote “junk science”.
If your expert is not an expert in all matters, then do not ask an expert to opine on areas outside of their narrow area of expertise. Leave that up to fact witnesses or to the expert or party that has the requisite expertise. Let the person present commentary that has the expertise. If you are the expert being asked to respond to something that is not in your area of expertise, you should state this so that everyone knows your opinion is not as an expert. The expert should not try and be an expert in all concerns in the case.
An expert that takes over a presentation of the case or that goes beyond their report or their PowerPoint presentation and as a result, loses credibility. The expert may be key to the case, but a humble, vulnerable, flexible expert that is able to present the information plainly and clearly will win out over the decision maker(s) compared to the expert that thinks he or she has all the answers.
Summary
Know your area of expertise. Stay in your lane. Come well prepared. That means not only for what you will present but know who all the parties are so that when you present you are presenting at a level that the ultimate decision makers or arbitrator will clearly understand. The attorney has a clear role to play as an advocate for their client. Your role as an expert is to help the decision maker(s) to make the best decision possible. If you come off as arrogant, a know-it-all, or pompous it is likely all your work will be for naught. On the other hand, if you come off as an expert that is there to help the decision maker(s) make an informed decision and you have presented your commentary in a way that they can clearly understand, your impartial analysis will allow you to be perceived as a credible expert. This  will serve you, your client, and the decision maker(s) in coming to a decision that is in the best interest of everyone.
Michael Gregory, NSA, MBA, ASA, CVA, is the founder of Michael Gregory Consulting, LLC. He is an international speaker, author, and consultant who helps clients identify, address, and resolve issues with the IRS, business to business, and within businesses (shareholder disputes, succession planning) so that they can take advantage of The Collaboration Effect® He has helped hundreds of clients work through conflicts and negotiate winning solutions.
Mr. Gregory can be contacted at (651) 633-5311or by e-mail to mg@mikegreg.com.
