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.