Hiring the Right Expert For Your Construction Dispute

Construction projects are complex undertakings, typically involving multiple parties, intricate contracts, and significant financial investments. With so many moving parts, it’s no surprise that disputes often arise over delays, defects, payment issues, or contract interpretation. When these disputes escalate to arbitration or litigation, the technical and specialized nature of construction means that lawyers and judges often need help understanding the facts. Hiring the right expert can make all the difference – but where do you start?

Do I Really Need an Expert?

Construction disputes are complicated. They often hinge on technical details that raise questions requiring specialized knowledge to answer. Without expert analysis, it can be difficult to establish what actually happened, who is at fault, and what damages are appropriate.

Experts bridge this gap by providing objective, professional opinions based on their training and experience. A good expert can explain complex issues and present them in a manner that is understandable to non-specialists. Their advice, reports, and testimony can be pivotal in determining the outcome of a case.

Types of Experts 

The type of expert needed depends on the nature of the dispute. Here are six of the most common:

1. Construction Delay Experts:

These professionals analyze project schedules, identify causes of delays, and determine whether those delays were excusable or compensable. They often use critical path method (CPM) scheduling to provide a clear picture of how and why a project fell behind.

2. Cost Estimators and Damages Experts:

When the dispute involves claims for additional costs or damages, a cost estimator or forensic accountant can assess the validity of those claims by determining the cost of labor, materials, equipment, and other expenses. They analyze invoices, change orders, and project records to determine an accurate project cost.

3. Architects and Engineers:

If the dispute centers on design defects or construction quality, architects and engineers can assess compliance with building codes and standards, evaluate structural integrity, and determine the cause and extent of damages due to structural failures.

4. Construction Safety Experts:

In cases involving accidents or injuries, safety experts can review site conditions, safety protocols, and compliance with OSHA or other regulations to determine if proper procedures were followed.

5. Materials and Geotechnical Experts:

Sometimes, disputes arise from issues with materials (like concrete, steel, or roofing) or site conditions (such as subsurface soil stability). Experts in these fields can analyze how materials including soil or rock behave under various conditions, can test materials, review lab reports, and provide opinions on whether materials or site prep contributed to the problem.

6. Construction Contracts Expert:

These professionals interpret contract documents, evaluate performance and compliance, and assess scope changes, delays, or additional costs related to construction projects.

Five Ways Experts Can Help Resolve Construction Disputes

1. Clarifying Technical Issues:

Experts break down complex technical matters into clear, understandable explanations. This is invaluable for judges, juries, and the parties involved.

2. Providing Credibility:

A well-qualified expert lends credibility to a case. Their objective, professional opinion can carry significant weight in negotiations, mediations, and at trial.

3. Supporting or Refuting Claims:

Experts can support a party’s position or challenge the opposing party’s claims. For example, a delay expert might show that a delay was caused by unforeseen site conditions rather than contractor negligence.

4. Assisting With Settlement:

Many construction disputes are settled before trial. Expert reports can help parties and their counsel understand the strengths and weaknesses of the case, facilitating more informed settlement discussions.

5. Testifying in Court or Arbitration:

If the case does not settle, experts can testify as witnesses, explaining their findings and opinions to the judge or jury.

Timing of Expert Involvement

Early involvement of an expert is generally advantageous for several reasons:

• Early Case Assessment: Experts can assist in evaluating the merits of a case before significant resources are committed to litigation.
• Preserving Evidence: Construction sites change quickly. Early expert involvement allows for site inspections, sample collection, and documentation of conditions before evidence is lost.

· Discovery and Depositions: Expert input can allow for more precise and effective discovery requests and deposition questions, ensuring the information needed to support a case is obtained.

• Facilitating Settlement: Early expert reports can encourage settlement by clarifying the facts, narrowing the issues in dispute, and lending credibility to claims or defenses.

Delaying the retention of an expert can result in missed opportunities to gather critical evidence or allow the opposing party’s expert to shape the narrative.

Conclusion

Construction disputes are a high-stakes, technically demanding arena. The effective use of qualified experts can be critical for resolving disputes efficiently and effectively. For litigators, involving experts early in the process provides the technical insight and credibility needed to achieve the best possible outcome for clients.

Engaging experienced construction litigation experts at the appropriate stage can help navigate the complexities of a case and facilitate a successful resolution.

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Lauren McGinley is a member of Fox Rothschild’s Litigation Department. For more information, please contact her at lmcginley@foxrothschild.com.

This article is provided for informational purposes only—it does not constitute legal advice. Readers should consult legal counsel before taking action relating to the subject matter of this article.

 

Meet the Forum's In-House Counsel: JOHN KIMON YIASEMIDES

Company: AYA Consulting

Email: Kimon.Yiasemides@AYAConsultingllc.com

Website: http://www.ayaconsultingllc.com

Law School: University of Maryland 

States Where Company Operates/Does Business: Based in the Washington DC area, operates globally

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Q: Describe your background and the path you took to becoming in-house counsel.

A: My background is unique; one that spans many aspects of construction management and construction law. At a recent conference someone referred to me as an anomaly, which I took as a compliment, although I would prefer to refer to myself as a Renaissance Man of Construction Law! My background in construction began with my degree in Construction Management from the University of Florida’s ME Rinker School of Building Construction. Thereafter, I was hired by Centex’s commercial construction division to manage large-scale commercial and educational projects in central Florida. After six years with Centex, I obtained my Juris Doctor from the University of Maryland’s School of Law. In the year prior to law school, I worked as an expert witness with Hill International in Washington D.C. While I also spent some time working for the law firm of Ober Kaler in Baltimore during law school, I decided that what I enjoyed the most was the expert work where I could put the pieces of the puzzles together using forensic analysis. After law school and passing the bar in Maryland, I was able to put both aspects of my education to work by working as an expert and filling the role of in-house counsel for Warner Construction Consultants, Inc. where I worked for 11 years. That experience, along with four more years working at Navigant/Ankura, helped round out the experience that I now employ as a consultant. 

Q: Where do you focus your work? Do you have a specific geographic area?   

A: I now work anywhere in the world. For example, within just the last year or so I worked on cases from Australia, Europe, the middle-east, and across the US. In fact, I have had projects in 6 of the 7 continents over the years (you can probably guess where I haven’t yet had a project). I often explain that I have worked on everything from the Burj Khalifa (the tallest building in the world) to a ‘Naked Pizza’! (It was a local make-your own pizza place, don’t get too excited). But, the in-house type of work I perform is all domestic. 

Q: What kind of work do you do?   

A: The work I do now is in several different capacities. At the most basic level, I can help projects that are struggling with difficult scheduling issues that need a hand navigating large delay impacts while the project is underway. If the dispute needs a third-party expert for forensic schedule analysis or damages assessments, I can also help in that capacity. But I also help companies who need supplemental in-house counsel services when their workload has become too great (for any variety of reasons). Working in these various capacities provides me a way to utilize all of my unique experiences and background. This is why I love working as an independent expert, as I have been doing for the past five years now.

Q: How and when do you interact with outside counsel? In what kinds of matters?   

A: In addition to the roles I just described, I can be of assistance with outside counsel when there are discovery management issues, helping them navigate the best way to find, organize and manage key documents, some of which can only be viewed with specialty software. I can also help interpret, communicate and navigate the construction landscape in a way that helps accelerate their understanding of the case. I have been on both sides: defending depositions and being deposed, preparing discovery and reviewing discovery, and writing contracts and reviewing disputed contracts. This unique experience can provide valuable perspective. 

Q: How can outside counsel best serve a construction company? 

A: I think the best outside counsel are those who can listen and understand the issues in the case and get their hands around the facts so that they can put forth the best arguments. I always say, “the party most in command of the facts most often wins.” When I am working as a third-party expert witness, if outside counsel can hire me early, I can help them get in command of those facts. But if they wait until a month before the expert report is due, it can be a real struggle for us both. Having said that, I would say a proactive lawyer with a clear plan of attack and foresight to know what she will need is optimal. For example, if I am hired before discovery starts, it doesn’t mean she will have me working full-time right away. Rather, I will likely spend a few hours on the matter to provide input on the discovery process (or anything else she needs input on) in order to help with her game-plan moving forward, which is often well worth it in the end.

Q: What qualities/characteristics do you think are helpful to have in a mediator or arbitrator? 

A: Whomever it is, the person must be properly prepared. I have encountered, more than once, hearings in which I am explaining facts in the case on direct testimony, and I can just tell that the arbitrator(s) has not read and does not understand the pleadings and pre-trial briefs in the case. After all the efforts the parties spend in distilling the case in their complaint and pre-trial or mediation briefs, to then see that it was not carefully read and re-read, is such an inexcusable waste. I also always recommend picking an arbitrator or mediator with a construction background, such as a former or seasoned construction litigator. This facilitates their understanding when describing the scenarios of what happened as there is generally no time to bring them up to speed on construction terms and practices. 

Q: What are some characteristics of the best outside counsel you have encountered? 

A: The best attorneys I have worked with are those who at their core are concerned about helping their client reach the best outcome. Sometimes that means reaching an early settlement, while other times it means taking the case all the way to trial. But a firm conviction to making sure the outcome is in the client’s best interest is key. I don't think outside counsel that argue points just for the sake of arguing is an effective or palatable strategy to most in-house counsel. And, I would also say, be creative in getting to yes!

Q: What are some of your interests or hobbies? 

A: I have many interests, or I wouldn’t be able to call myself that Renaissance Man, would I? I would say on top of my list are coaching soccer and other sports for my boys and jamming with them as a jazz trio (still working on that one; I play saxophone, my oldest plays trumpet and my youngest is a drummer…it’s a start). I also enjoy skiing and other recreational sports to stay fit, and someday when my nest is empty, I’ll return to volunteer somewhere again like Habitat for Humanity.

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Assistant Editor-in-Chief Jessica Knox is a Partner in the Minneapolis office at Stinson LLP. She represents owners, general contractors, and subcontractors in litigation disputes. Jessica can be contacted at jessica.knox@stinson.com. 

Message from the Chair: Joe Imperiale (Volume I)

I am honored to take over as the Division 1 Chair from my friend, Kelsey Funes. Kelsey was an outstanding Chair and continues to do great work for the ABA Forum as she assumes her new position on the Governing Committee. 

For those of you who don’t know me, the following is a little about my background. I grew up in the Philadelphia area, where I still live and practice. I am the Managing Partner of the Philadelphia office of Troutman, Pepper and Locke, and am a partner in the firm’s Construction Practice Group. I have been at the firm (or its legacy firms: Pepper Hamilton and Troutman Pepper) my entire career and have always focused my practice exclusively on construction. For over 20 years I have been lucky enough to handle construction disputes all over the country and world, associated with a range of projects on behalf of owners, contractors and designers. It has been exciting to be part of my firm’s growth, and with over 50 fully dedicated construction lawyers, I have a great group of colleagues to work with on construction matters. 

My wife Lydia and I have three children. My son is a high school junior and my daughters are in 8^th grade and 4^th grade respectively. My kids are busy with various sports and other activities so when not working, I am taking them one place or another. 

I attended my first meeting Forum meeting 20 years ago in San Diego and have been attending ever since. Because my practice is focused on litigation, I gravitated to Division 1. A little over 10 years ago I decided I wanted to become more involved and reached out to then Division 1 Chair, Nick Holmes. It was one of the best professional decisions I ever made. Nick embodies the Forum. He made taking on “more work” in a volunteer capacity equal parts fun and rewarding. And Nick introduced me to a group of Division 1 Forum leaders, who are friends to this day, which include Tony Lehman, Tom Dunn, Cassidy Rosenthal, Kelsey Funes, Rob Ruesch, Jason Rogers Da Cruz, and Scott Griffith. I served on the Division 1 Steering Committee when Nick, Tony, Tom, Cassidy and Kelsey were each chair, all of whom advanced Division 1 to make it a part of Forum that serves hundreds of construction lawyers that practice in litigation, arbitration and dispute resolution. The current Division 1 Steering Committee is comprised of Catherine Delorey, Katie Kohm, Marissa Downs, Jessica Knox, Jade Davis, Katie Anand and Brett Henson.  I look forward to working with this talented group as we continue the great work of Division 1.  

I’m looking forward to seeing many of you in Louisville at the Forum’s Fall Meeting. We will be kicking off the meeting with a 2-hour planning retreat on Wednesday morning (September 2) at 10 am, which any Division 1 member should feel free to join. 

On Wednesday afternoon we are presenting another fantastic practicum, Negotiating the 10 Most Common Contract Provisions to Minimize Risks and Avoid Disputes, in which Harper Heckman, Chris Dunn and Matt Gillies will tackle the topic from the owner, contractor and designer perspectives. 

On Friday (September 5), our luncheon presentation is "Selecting the ‘Right’ Dispute Resolution Procedure" led by Creighton Sebra and Sean Dillon, which should not be missed by anyone who drafts contracts or handles disputes. 

Finally, on Thursday evening, we will have a great time socializing with Division 1 friends new and old at Barrels & Billets tasting room. A special thanks to FTI Consulting, and friend of Division 1 Eric Schatz for sponsoring the event. For tickets, contact John Gazzola (John.Gazzola@troutman.com).

If you are attending the Fall meeting, I invite you to join us for all of these outstanding activities.

I look forward to working with all of you and encourage anyone with program ideas and suggestions to reach out to me.

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Author Joe Imperiale has dedicated his practice exclusively to the construction and manufacturing industries for 20 years. He represents owners, EPC contractors, construction managers, general contractors, and subcontractors in disputes on a wide array of construction projects, and can be contacted at Joseph.Imperiale@Troutman.com.