Project Manager’s As Expert Witness
Norman F. Jacobs, Jr., CSI, CPE, PMI, AACE, IIE, SAR
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:  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.  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.  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.  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.  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:  establishing a very short time between the initial and next meeting,  discussing how best to use the expert’s knowledge,  establishing short-term goals,  defining specific tasks,  scheduling receipt of expert opinions,  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