Welcome to the launch of The Dispute Resolver’s new series “Consultant Corner.” We invite article submissions from ABA Forum member consultants on topics important to the Litigation & Dispute Resolution Division (D1). In this article, the authors explore the role of technical experts in early dispute resolution. A combination of earlier engagement and more technical involvement could potentially help the dispute resolution process be more effective.
Construction disputes do not always require an expert;
however, an expert is typically sought if the dispute involves particularly
technical or complex issues that a lay person (including counsel and triers of
fact) cannot readily understand. When is the most appropriate time to call upon
a technical expert in a construction dispute? Most will turn to technical
experts only after the dispute has advanced to the point where damages are high
and litigation or a more formal ADR process is the likely path to resolution.
Many also believe that a technical expert is required mainly for testimony in
court, and therefore, late appointment of an expert shortly before trial is the
most economical decision, but in many cases this may not be true. It is
becoming more and more common for attorneys to retain an expert early, and the
pre-litigation phase is arguably the best time to do so.
Pre-litigation Phase
During a pre-litigation or claim preparation phase, a
technical expert typically serves as a “consulting expert” for one of the
parties in the dispute, someone who can help evaluate any technical issues in
dispute and opine on the relative strengths and weaknesses of proposed claims
or positions. Another way an expert may be involved is to serve as an “independent
evaluator” or a member of a “dispute review board,” jointly appointed by the
involved parties, to advise on the merits of each party’s position based on the
position papers and supporting information provided by the parties. Regardless
of the role the expert may take and by which party the expert is retained, this
process usually kicks off “after the fact” that is, when the dispute has led to
large damages and/or delays. In many cases, it may already be too late for the
expert to show value because the parties may already have experienced a
significant economic loss, both parties may share significant fault in the
escalation, and neither party is likely to clearly prevail in a settlement or
litigation.
Rather than wait until this point in the dispute, we have
seen the dispute resolution process be more effective when parties like owners,
construction managers, design-build entities, and others retain experts earlier,
even before a claim is fully formulated and a formal dispute resolution process
has begun. Ideally, this kicks off when the dispute is just starting to rear
its head as a disagreement, damages may not be fully formed or realized just
yet, and the sides may not yet be entrenched in their positions. In this
situation, the technical expert serves as a neutral third party who can weigh
in on the cause of a problem and help to mitigate or resolve it (such as by
performing independent design peer-review and developing a remediation plan to
address the identified problems) before it escalates into a full-blown dispute
in need of trial, arbitration, or formal mediation.
In this role, the expert serves as a neutral fact finder, as
well as a source of technical insight. The expert plays the role of an
independent evaluator or a dispute review board member by hearing each side and
weighing the merits of each position, but at the same time, gets more involved
in the technical nuts and bolts like a consulting expert to get to the bottom
of the cause. And ideally, rather than just stop at finding the cause of the
problem, the expert becomes part of the solution by proposing ways to get
things under control, and potentially avoid similar problems from arising
during the remainder of the project. The use of an expert in this setting has
the potential to be highly cost-effective because one of the objectives is to
prevent escalation of the damages that initiated the dispute in the first
place. If damages are low to begin with, and stay below reasonable cost
contingency levels, there may be little sense in pursuing costly recovery. A
skilled and amiable expert, combined with a measured facilitator (perhaps
inside or outside counsel for the owner or construction manager), can also
encourage all sides to engage in solving the problem collaboratively, which can
further expedite the resolution and help heal the bruises of any initial finger
pointing. It can turn what might have been a failure into a success story and a
triumph of teamwork.
Case Study
As an example of this sort of early expert involvement, the author
was engaged by a construction manager at risk to help resolve a pair of
disagreements between the project structural engineer and steel subcontractor,
both of which threatened increasingly large repair costs and delays. One
dispute involved widespread, seemingly random weld cracking throughout the
project, for which each side blamed the other, with proposed or attempted
repairs (most failing) often reflecting this finger-pointing. The other dispute involved steel assemblies that
were surveyed to be out of level after installation, alternately being blamed
on improper design and improper fabrication. The author was given an
opportunity to review relevant documents, tour the site, speak to both parties,
and perform some analysis. The author was able to discover a pattern in the
seemingly random weld cracking that allowed the engineer and fabricator to
focus their attention and develop alternative weld procedures and details to repair
existing cracks and prevent future cracks. They also performed an analysis and
facilitated load testing and surveying of the questionable assemblies to show
that the appearance of out-of-level assembly was a result of benign
construction tolerance issues, avoiding the need for costly replacement or
retrofit. The final result was cooperation between the engineer and steel
subcontractor, a halt to the escalating repair costs and delays, and a much
less painful process in the long run for all sides.
Food For Thought
Before implementing this strategy, there are several questions that the involved parties and their counsel might consider:
- How should parties that propose this type of dispute resolution broach the subject to their at-odds colleagues?
- Like the engagement of an independent evaluator or dispute review board, can this type of process be written into contracts or teaming agreements?
- Should everyone involved have a say in selecting the technical expert, or a right to veto the proposed expert?
- What agreements need to be in place to encourage open and honest cooperation in the resolution process while protecting the rights of each party should litigation occur down the road? Is the potential for reducing the damage of the dispute enough encouragement for the parties to participate openly?
- What happens if the involved parties do not cooperate or willingly provide necessary information to the jointly appointed technical expert?
- If negotiation is unsuccessful and the claim proceeds to subsequent proceedings, such as litigation, what role might the technical expert be able to take? Might they hold any liability?
Conclusion
Regardless of the potential challenges, this kind of early
expert engagement has the potential to facilitate dispute resolution and is worth
exploring further by consultants and attorneys, as it aims to help all involved
parties toward a positive outcome and to minimize costs before they become
excessive. For us experts who are also practicing designers, this is also an opportunity
to take lessons learned and apply them to future projects, preventing future
disputes and bringing a type of deep satisfaction that our more traditional
expert engagements cannot quite match.
Authors Thanh Do, Ph.D., P.E. and David Ojala, S.E., P.E., LEED AP, CWI are structural engineers at Thornton Tomasetti specializing in structural failure investigations and standard of care assessments. They assist attorneys, general contractors, design professionals, and owners at various phases of construction dispute resolution. In addition, both are active structural designers, with a focus on performance-based seismic design, existing building retrofit, and risk consulting.
