Midwinter Meeting - D1 Breakfast Program - Getting it Right Early: Expert Retention Best Practices

It's no secret that construction disputes frequently involve one or more expert witnesses on each side. Our Division 1 panel -- Joshua B. Levy of Husch Blackwell LLP and Bill Manginelli and Mary Jay Torres-Martin both from Trauner Consulting Services, Inc. -- offered some best practices for those expert engagements starting at the initial meeting through the expert's trial testimony.

Joshua Levy and Bill Manginelli

Using a creative presentation approach (and apropos for the upcoming 2018 Winter Olympics), Joshua, Bill, and Mary Jay set the scene for a dispute between Olympic Mechanical and Bobsled Contractors over the mechanical subcontractor's claimed costs for extra work and delay.  Joshua served as counsel for the defendant Bobsled Contractors and Bill was Bobsled's expert.  Over the course of three acts marshaled by Mary Jay, Joshua and Bill held mock meetings to discuss the claims, exchange of documentation, initial opinions, written reports, and preparation for depositions and trial. The pair offered important and practical reminders to ensure the expert testimony will meet the requirements of the rules of evidence and civil procedure.  As a coda to the presentation, Eric J. Meier also from Husch Blackwell LLP, played the opposing expert for Olympic and faced stiff cross-examination from Joshua.  This mock cross-examination illustrated the worst case scenario if best (or even good) practices for preparing experts are not followed.  

Materials "Considered" by Construction Expert Are Off Limits

The Rhode Island Supreme Court, in Cashman Equipment Corporation, Inc. v. Cardi Corporation, Inc. interpreted Rule 26 of the R.I. Superior Court Rules of Civil Procedure to hold that the Plaintiff subcontractor could not discover all materials that the Defendant general contractor's testifying expert considered when formulating his opinions.

The underlying matter concerned work on a bridge that spans the Sakonnet River in eastern Rhode Island.  Plaintiff served as the bridge foundation subcontractor on the project. Plaintiff alleged that it incurred additional costs because the Defendant general contractor issued a defectively designed cofferdam and materials to Plaintiff.  Defendant disagreed and tapped an engineering expert who opined that cofferdam design was not defective.  Plaintiff sought to investigate the underpinnings of that opinion and requested "all materials and documents, less core attorney work product, including all computer models and drafts of materials and documents, developed and considered by [Defendant's] testifying expert . . . in the process of formulating his written expert opinions.”  Defendant refused to produce the drafts of its expert's models and documents.  Plaintiff retorted with a motion to compel thatthese materials "considered" by the expert were within the scope of Rule 26, were discoverable, and were necessary to "assure effective cross-examination of testifying experts." The Superior Court disagreed and denied the motion to compel.

On writ of certiorari on the interlocutory issue, the Supreme Court started with the section of Rule 26 that embraces expert discovery:
A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party.

Rule 26(b)(4)(A) of the R.I. Superior Court Rules of Civil Procedure.  With a nod to the reasonableness of the Plaintiff's request, but constrained by this plain language in the rule, the Court concluded that investigation of experts "is confined by its very terms to discovery through interrogatories or deposition." As a result, Plaintiff was not entitled to review Defendant's expert's documents considered.  The Court went on to hint that a rule change may be in order.

After reaching this decision, the Supreme Court observed that Rhode Island's current Rule 26 diverges from the current Federal Rule, which does require a party to disclose a testifying expert witness's report along with, inter alia, "the data or other information considered by the witness in forming the opinions."
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The author, Katharine Kohm, is a committee member for The Dispute Resolver. Katharine practices construction law and commercial litigation in Rhode Island and Massachusetts. She is an associate at Pierce Atwood, LLP in Providence, Rhode Island. She may be contacted at 401-490-3407 or kkohm@PierceAtwood.com.

Paper Experts, Part II: How a CV Can Create Apparent Experience

Last week, we had Part 1 of our two-part discussion regarding how an expert's curriculum vitae can create the impression of experience that an expert really does not have.  Today, as promised, here is Part 2.

Dan Valentine

Jim Cohen

Paper Experts: How a CV Can Create Apparent Expertise: Part 2

For Part 1, click HERE.

Published Papers

Experts may publish papers in their areas of expertise. Usually, the perception is that more published papers represents greater expertise. Peer reviewed papers typically reflect greater respect for the author, and published books are viewed as even greater qualifiers.

While there is some validity to this perception -- it is difficult to write a technical book or paper without associated knowledge – there are also methods by which individuals may exploit this. One common method is to publish multiple papers based on the same information, where slight changes to the original (and legitimate) paper allows for several more to be published. Even if there is only a single, legitimate paper, it is possible that the named authors may not have contributed equally. Often, the junior author does most or all of the work, whether in the writing or the actual project/research, and the senior author edits and approves. Authors may also simply be added if there was any involvement on the project, though not the paper, and therefore were considered to have offered some slight contribution.

It is also important to distinguish between the paper that was published and the paper that was presented. While it is not necessarily true that it is more difficult to publish than present, it is certainly the case that it is easier to present repetitively than to publish. For multiple presentations, there may be written documentation, but this is often not necessary to the presentation and, each time the topic is presented, the title may change.  Professions may do this regularly – such as using the same materials for a continuing education program, reusing the same presentation for a later program or an in-house seminar, and claiming both presentations as credentialing experiences. 

Authoring a book takes much greater effort and, typically, greater expertise. But not all books should be regarded as demonstrative of high credentials. One method of reducing the necessary effort is to be a compiler of others’ work, as may occur in handbooks where each chapter is contributed by a different author.  Yet another is to split one book into multiple volumes, thus trebling or more the apparent expertise of the author. This is not to say such expertise is invalid, but rather that the extent of expertise may be misrepresented and should be closely examined. It is important to note that these decisions are more likely to have been made by the publishing company than by the author and would therefore not reflect on any attempt by the author to deliberately “pad” their CV.

Professional Research

Professional research is typically reflected in published papers or specific research-related projects. The issues associated with project lists, published papers, and professional research are very similar. There is the possibility of misrepresenting a single research project by dividing it into multiple segments, each with its own title potentially resulting in one or more papers. Similarly a single project’s funding may be split into multiple phases and then presented as multiple projects. Consequently, the number of research projects and associated papers do not necessarily reflect the size, duration, or complexity of the research.

There is also the opportunity to exploit project submissions which did not result in any specific project or research, referring to these as “studies” or similar. PowerPoint presentations based on these “studies” could be prepared and then listed as individual papers or presentations.

Membership in Professional Organizations and Committee Involvement

Most experts are involved in industry-related organizations for any number of reasons, including simply to receive the organization’s publications, to attend seminars and conferences at discounted prices, or to be able to list the membership as a means of demonstrating expertise. Another reason may be to participate actively within, and contribute to, the organization.

Although the number of organizations to which an individual belongs does not necessarily mean that the expert is trying to inflate his or her expertise, listing membership in multiple organizations without the investment of time and energy to assist that organization in its mission does suggest possible false advertising. There may also be a difference in membership category. For example, in the American Bar Association, there are full members and associate members, but a non-attorney cannot be a full member. In the American Society of Civil Engineers, full members must be licensed professional engineers; however, in ASTM International there are no such restrictions on society membership or committee membership. Satisfactory responses to questions related to attendance at organizational meetings, conferences, or other contributions may provide the assurance needed.

Similarly, membership in those organizations’ committees may also indicate a high level of expertise; however, a committee membership may be in name only. While many committees may limit their membership to recognized experts in their fields of interest, others may have open memberships. Additionally, committees may be technical or non-technical.  Membership on an administrative committee may reflect interest in the organization, but it is not reflective of any expertise.

While discouraged by most organizations, it is often possible for an organizational member to join committees but not participate. When confronted with an impressive list of committee memberships, careful questioning with regard to attendance and participation in committee activities may reveal possible intentional padding of a CV.

Awards

Awards, almost regardless of source, are generally regarded as recognition of achievement. But the achievement itself may be for many things, including but not limited to length of service, financial contribution, project excellence, and expertise. Awards may be to individuals or organizations.

Where awards are listed on a CV, the reason for the award needs to be determined. Was this for an activity reflecting expertise? Was this a team or individual effort?  If it was a team effort, to what extent did the individual participate in and contribute to the work?

Testimonial Experience

As attorneys recognize, not all times when an expert testifies in a case are alike.  Investigation of testimonial experience should include questions such as:

•  In what capacity did the expert testify – as a fact witness, or as an expert to an entire case related to liability and damages, or somewhere in between? 
• Did the expert testify at an arbitration or at trial? In a deposition only? Federal Court or State Court?
• Did the expert testify on behalf of the plaintiff or the defendant? 
• Does the expert normally testify only for a certain project participant, such as testifying only in favor of owners in finding that an architectural firm has breached its standard of care?  
• Which side prevailed, and, if not on the ‘winning’ side, was this due to a legal issue as opposed to the strength of the testimony? 
• What were the case names?

It is important to note that some of this information may not be available to an expert so that it may be necessary to obtain information from an attorney who engaged the expert previously. 

Federal Rule of Civil Procedure 26(a)(2) requires testifying experts to provide a list of all other cases in the previous four years in which the witness has testified as an expert at trial or by deposition. But all testimony is not the same. An expert who has testified only in arbitrations has not seen their credentials challenged or tested by a Daubert motion. Similarly, an expert who has testified only in state courts may not have been subjected to the rigor of a challenge in federal court. 

In addition, a four-year period for testimony is not all that much information, and may only provide a few instances of testifying for a construction expert. That amount of time might even hide cases in which the expert tried to testify but was not accepted by a court based on a lack of expertise in the particular field in which you seek his or her testimony.

Just as suspect may be the expert whose testimony has never made it past the deposition stage in a case. If the expert never testifies after the deposition stage, there may be good reasons for it. Perhaps every single case the expert has analyzed has settled, but it is worth considering why that happened.  Of course, it could be “bad luck” that the expert has never testified in a federal court trial. On the other hand, it could be that the expert’s past attempts at testimony were so lacking that the expert’s clients took whatever they could get. Or, the expert may not have made it past a Daubert challenge.

In certain cases, the side of the case on which the expert testified matters as well.  Does the expert only testify to promote delay claims? Is the expert only on the plaintiff’s side in construction defect matters or work on behalf of insurance companies? Does the expert always work with the same law firm? Does the expert’s company provide work to the law firm? Does the expert only work on behalf of general contractors, or subcontractors, or owners, or architects? While such matters may not affect the expert’s ability to be qualified to testify, and should not affect their opinion, it may affect how a fact finder views the expert.

Finally, and especially when dealing with the “make-or-break-the-case” experts, the experts should be willing to consent to the attorneys contacting any or all of the attorneys who worked with the expert previously. Attorneys who worked with the expert previously should be able to confirm the details of the expert’s engagement in a particular case, the type of case, the subject matter on which the expert testified, and the result of the case.  

Summary

As evidenced above, factual information regarding a potential expert’s credentials can be misleading, even if not intended as such.  The key is to always ask yourself if your understanding of the expert’s credentials is based upon facts or upon assumptions and inferences drawn, for better or for worse, from those facts.  If it is the latter, then ask questions to validate or negate those assumptions and inferences.    Indeed, one of your first goals in hiring an expert should be to see how they stand up to cross examination regarding their credentials.  Just be sure that the first time you see that examination is when you are the one performing it – not your opponent.

Paper Experts: How a CV Can Create Apparent Expertise

Jim Cohen

In May, Jim Cohen of Thornton Tomasetti and Dan Valentine of Simpson Gumpertz & Heger Inc. (along with Dispute Resolver editor Tony Lehman) introduced a series of articles regarding Expert Witnesses and False Representation of Credentials. As that original article mentioned, one way that experts may misrepresent their experience and credentials is through the use of a curriculum vitae (CV) that makes it appear that the expert is more experienced than they really are.

Dan Valentine

The ways in which a CV can hide an expert's inexperience are myriad. As a result, this article regarding expert resumes being bolstered in artificial or potentially misleading ways will be broken down into two installments. The first section is being posted today, and the second half of the article will follow next week.  With that introduction, here is the first half of "Paper Experts."

Paper Experts: How a CV Can Create Apparent Expertise

Part 1 of this series discussed the real problem of false representation by experts and the need for attorneys to evaluate their potential experts carefully. Failure to do so may result in disqualification of the expert and exclusion of his or her testimony under Federal Rule of Evidence 702. Although it is important to know that there is a problem, the key is knowing how to avoid it in the first place. This installment discusses how credentials may be used, either intentionally or not, to create the appearance of having expertise that the expert actually does not have. Knowing what to look for and what questions to ask will help to avoid later embarrassment or worse.

Initial Due Diligence

Due diligence should always start by confirming the basic information the expert provides. As an initial step, this includes verifying the current employer and title, educational degrees, and active professional licenses. For example, most states provide free databases for licensed professionals that should be searched immediately to verify claimed licenses or authorizations.  If reasonably ascertainable, memberships in organizations and related committees should also be checked.  This can often be accomplished through a simple telephone inquiry. Of course, this is only the starting point for properly assessing a potential expert. Stopping with this step is very risky for both attorney and client alike.

At the outset of most expert retainers is a review of the expert’s curriculum vitae or CV. A CV will include education, professional licenses, employment history, and project experience. The potential expert may include published papers, professional research, membership in professional organizations and committee involvement, and other industry accepted methods of recognition, such as awards, as further evidence of their expertise. Additionally, the testimonial experience of the potential expert is also used to gauge expertise and ability to testify.

Each of these items will be discussed briefly.

Education

The basic evidence used to establish educational qualifications is the issuance of a degree, typically some combination of a Bachelor’s degree, a Master’s degree, and a Doctorate degree. Occasionally Certificates of Completion or Training Certificates may also be provided. Even though having a pertinent degree would seem basic, it can still be the subject of resume padding or worse.

First, the date of the degree is often not included on a CV. Discrepancies between date of issue and times of employment may be a flag. For example, if the degree postdates experience, then  the prior experience listed might not be relevant as part of the “knowledge, skills and training” requirement of Fed. R. Evid. 702.   

Similarly, the school issuing the degree may not be listed. Not all colleges are created equally, with some being accredited and others not, and even within the group of legitimate institutions there is wide range of quality of the education provided. It is not unknown for degrees to be available for purchase from suspect organizations. One of many examples can be found in a New York Times article on May 17, 2015, which identified a Pakistani software company selling fake academic degrees using fabricated news reports, actors pretending to be professors, and even photographs of fictitious university campuses.  The consequences of such alleged degrees can be catastrophic, as evidenced by the following excerpt from the article:

In Britain, the police had to re-examine 700 cases that Mr. Morrison, the falsely credentialed police criminologist [and graduate of the fake college] had worked on. “It looked easier than going to a real university,” Mr. Morrison said during his 2007 trial.

Though it does not negate the damage done, the CEO of the software company, along with four other executives, were arrested by Pakistani investigators and charged with fraud, forgery, illegal electronic money transfers, money laundering, and validating Pakistan’s electronic crimes act. 

Certificates of Completion may reflect a partial completion of a degree program, more indicative of a failure to complete than an accomplishment of merit. Training Certificates may reflect attendance at sales events rather than training. On-line course and training certificates may reflect simple payment of a fee or completion of a simple exam for which no actual study was required.

Even if the individual’s educational credentials are from a true, accredited institution, the subject matter of the degree is typically not provided on many CVs. While B.Sc., M.Sc., or Ph.D. degrees may be relevant to structural engineering, they could be equally relevant to plant sciences. The relevancy of the field of study to the claimed expertise should be confirmed in addition to the degree itself.

This last point, the relevancy of the stated experience or activity to the expertise sought, is one which should be carried through the entire evaluation of the expert.

Professional Licenses

Today, it is often possible to confirm a professional license is current and active via the internet. For example, in New Jersey, the My New Jersey License website provides instant confirmation of a license based upon drop-down menus which include Profession, License Type, and License Number. However, what confirmation of a particular license may not provide is information on any discontinuity of the license or violations, complaints, or citations which may have been resolved. Even if the information provided is limited, it is vital to check the status and history of any licenses that the expert claims to hold. Learning this from the opposing attorney during trial could be damaging to your expert’s credibility and, at the very least, disconcerting.

Employment History

Some CVs list employment history, with the month/year of employment provided, while others do not.  Most will contain the title held by the expert during employment. The reasons for a change in employment are rarely, if ever, provided and can create an opportunity for abuse.

Gaps in employment may mask weaknesses in experience. Reasons for changing employment may be simple individual advancement or a better job offer. However, it may also indicate poor performance, or violations of employment conditions.

Job titles often change and can sometimes mask the individual’s true level of responsibility. What may be an Associate Principal at one company may be a Senior Vice President at another. An individual who commences work at a company as an intern may finish as a Senior Project Manager or Vice President. During the intervening period there may be many changes to title and job responsibilities. It may be that some companies use impressive titles to retain employees, or obtain clients, without the employee having first obtained the experience implied by the title and/or without the implied job responsibilities. Again, surprises are rarely a positive event once the expert has been engaged.

Project Experience

Knowledge, skill, experience, and training following attainment of primary and secondary education are typically obtained through job experience. Job experience may be shown on the CV through either a project list or summary description of experience. Sometimes both are provided.

The summary description should be assumed to have been written to reflect the specific focus of a possible assignment by an expert. The same should be true of a list of projects which are likely to have been selected to reflect specifically related experience.

For many individuals, having been associated with any project may be sufficient to list the project on their CV. However, unless the duration, role and duties are also provided, there is little basis for assuming that that expertise may have been developed in any individual project. For example, following Superstorm Sandy, innumerable engineers became involved in the clean-up, evaluation, and other post-disaster activities. While some may have been involved in detailed investigations of damages, others may have performed only administrative work. Those involved in the investigation may have done as little as carrying a tool bag or as much as directing, managing, and taking full professional responsibility for the outcomes of the investigation.  If one or more projects seem to be directly on point for the potential engagement, then ascertaining exactly what the individual did on those projects is essential.

One way a company may “pad” employees’ CVs is by rapidly rotating their employees through multiple projects. The employee will gain relatively little experience from any particular project, but the number of projects listed on their CV will appear impressive. Project lists may therefore represent a false front of expertise rather than truly reflecting the depth of knowledge and experience gained by the individual.

Careful scrutiny of dates, including attainment of degrees, licenses and employment may provide sufficient information to show an inflated project list. However, detailed interviews of the prospective expert will be needed to assess any level of possible false advertising. 

Expert Witnesses – False Representation of Credentials – An Introduction

Everyone uses experts. But, can you tell the difference between an expert and a pseudo-expert?

Jim Cohen of Weidlinger Associates Inc., and Dan Valentine of Simpson Gumpertz & Heger, Inc. have seen a lot of good expert work in their practices, but they have also seen a lot of lawyers, clients, and courts misled by people through inflated credentials, slanted opinion, and advocative testimony.

In a four-part series, Jim and Dan will help you to avoid pitfalls in choosing experts and expose whether an opposing expert knows what they are doing.  As part of these articles, I am assisting Jim and Dan by providing an attorney's perspective -- or at least my perspective -- along the way so that, together, the three of us can help all of you in your work with experts.  

The Basics: The Federal Rules of Evidence

In nearly every construction case, the parties turn to expert testimony to support their respective positions. As most construction lawyers are aware, certain baseline requirements must be met for a purported expert to be allowed to testify.  The basic framework is set forth in Federal Rules of Evidence 702:

Rule 702. Testimony by Expert WitnessesA witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles and methods; and(d) the expert has reliably applied the principles and methods to the facts of the case.

Note that although this rule sets forth criteria for the admittance of testimony, embedded in its first sentence is the requirement that the witness “is qualified as an expert.”  This qualification process is grounded in the Supreme Court’s holdings in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), and its progeny.

Establishing the Witness as an Expert

As a result, it is a threshold issue to establish whether your witness is an expert before even considering whether his or her proffered testimony satisfies the requirements of FRE 702.  As stated at the beginning of FRE 702, the witness may be qualified as an expert by virtue of the individual’s knowledge, skill, experience, training, or education.  These foundational issues are usually satisfied through a review of the individual’s curriculum vitae.

Having established the witness as an expert, one must then examine the four requirements of FRE 702 to assess whether the expert’s testimony is admissible.  An expert will demonstrate his or her scientific, technical, or other specialized knowledge through their curriculum vitae and by examination and cross-examination. The expert’s opinion and the principles and methods upon which it is based typically will be presented in an affidavit, report or testimony. The trier of fact, as well as the expert witness’s client, are typically insufficiently knowledgeable of the technical issues to fully and reliably determine if the credentials are real, the data are reliable, the principles and methods are acceptable and the application of those principles and methods are appropriate.  But once the witness’s proffered testimony meets the requirements of FRE 702, the trier of fact may then make his or her own assessment of the expert witness’s credibility and determination of the weight to be accorded to the expert witness’s testimony and expert opinion.

When Things Go Wrong: Experts Who Are Not Experts

Nevertheless, there is ample room for an unscrupulous individual to present themselves as an expert falsely and their opinions as coming from an expert. In the best-case scenario, you will uncover the overt misrepresentation of credentials and conclusions before engaging the expert.  Then, you choose a different expert and go into battle. 

A step worse is if you have engaged the expert already, only you are able to uncover their puffery, misrepresented resume, or lack of education or experience in the field in which you need expert testimony before the purported expert testifies in a deposition or provides a report.  At least at this point in time, you still have the opportunity to replace the expert. 

Even worse would be if the expert’s failure to be qualified is determined after a deposition but before Daubert motions are filed. You may still have the opportunity to change out experts at this point, but the damage may already be done. 

Going further, you could end up losing your testifying expert through a Daubert motion.  Then, your choice of experts has not only caused you problems – it has caused your client to lose a significant amount of money only to be left without a testifying expert and subject to losing a claim on summary judgment.

Perhaps the worst-case scenario might be when your opponent may defrock your expert under cross-examination at a hearing or, perhaps as a tactical maneuver, at trial when it is too late for you to retain a new expert or regain the trust of the trier of fact. Not only would you lose the claim on which the expert is testifying, you may also lose other claims as well due to your lost credibility.

Alternatively, suppose no one uncovers the fact that the expert really is not an expert.  In this case, assume that you, your client, and ultimately the trier of fact will innocently accept and rely upon the expert’s inexperience, poor judgment, lack of knowledge, or misapplication of principles and methods towards the issues being addressed. The bad result here is less obvious than before but perhaps even worse: your client loses faith in your abilities and spends lots of money chasing a claim that it otherwise might not have pursued except for your advice based on this expert’s work.  Then, when the case goes awry, it’s your fault and you have lost a client.

Cautionary Tales Involving Defrocked Experts

Is there a problem with an expert’s credentials? It’s better to know the answer to this question sooner rather than later, as illustrated by the following cases:

1)    A firearms expert scheduled to testify on behalf of the State, killed himself after it was discovered that he had falsified his credentials and training. The defendant, whose conviction was based, in part, upon the expert’s testimony filed a motion for a new trial citing as newly discovered evidence the fraudulent credentials of the expert.

Mayes v. Maryland, 2010 U.S. Dist. LEXIS 114741, 6, 2010 WL 4238149 (D. Md. Oct. 26, 2010)

2)    The Supreme Court of Wisconsin vacated an inmate’s conviction concluding in a trial “rife with conflicting and inconclusive medical expert testimony” that it was likely that the jury would have had a reasonable doubt had it discovered that the expert witness lied about his credentials.

State v. Plude, 750 N.W.2d 42, 53 (Wis. 2008)

3)    Appellants challenged a decision that vacated an arbitration award on the basis of fraud.  They argued that the trial court erred because the appellants committed no fraud and because the only fraud was that of the appellees' own expert witness, who presented false credentials.

A. G. Edwards & Sons, Inc. v.Petrucci, 525 So. 2d 918, 918 (Fla. Dist. Ct. App. 2d Dist. 1988)

4)    A landowner involved in litigation engaged an expert witness to testify at the damages stage of the trial. At deposition and at trial the expert testified to his extensive educational and experiential credentials, but the other side impeached him with strong evidence of their falsity and obtained a large verdict in their favor. The landowner then sued the expert for deceit and misrepresentation, arguing that it relied on the expert's assurances, made in his resume and other materials, in retaining him as an expert and then presented him at trial based on his further assurances at deposition. The court agreed, because the landowner presented documentary evidence of its reliance on false information while the expert presented only his self-serving, conclusory affidavit in response.

Sturbridge Isle Realty Corp. v. Brown, 2001 Mass. Super. LEXIS 467, 1, 13 Mass. L. Rep. 607 (Mass. Super. Ct. 2001)

5)    A prisoner's petition for writ of actual innocence was denied properly because the discovery that the ballistic expert’s credentials were falsified did not create a substantial or significant possibility that the result might have been different.  In addition, there was no showing that evidence regarding the "expert's" education could not have been discovered through the exercise of due diligence.  Based on this, the "expert's" false testimony regarding his credentials was not material, but merely impeaching. His claim to have college degrees that he did not actually possess has nothing to do with the accuracy of his conclusion concerning the distance the victim was from the gun when it was shot.

Jackson v. State, 86 A.3d 97, 98 (Md. Ct. Spec. App. 2014)

6)    A pro se defendant sought a new trial on the grounds that his counsel failed to properly investigate the credentials of a government expert witness who falsely testified that he was a "board certified pharmacist." The government opposed the defendant's motion on the grounds that the defendant could neither show that his counsel was ineffective nor that he could show that the government should [2]  have known of the witness' perjury.

In considering the defendant's supplemental pleadings regarding the claims of ineffective assistance of counsel and that the government should have known of the expert witness' perjury, the Court concluded that the defendant failed to put forth a viable ineffective assistance of counsel claim and that the defendant failed to put forth any evidence that the government should have known of the expert's perjury.

 

United States v. Price, 357 F. Supp. 2d 63, 65 (D.D.C. 2004)

It is unlikely that, in the cases cited above, the attorneys employing the expert witnesses were aware of the false credentials. In addition to credentials, Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), highlight the need for careful scrutiny of data, methodology, and conclusions reached in regard to expert testimony. 

Notwithstanding Daubert and Kumho, the problem of misrepresented credentials continues to surface as late as at trial by which time any review of the expert’s credentials, facts, methodology and relevance should have long been completed. A recent case is a cogent example, in which the court concluded that, “plaintiffs' choice of Dr. Sullivan as its expert witness is surprising as he is singularly unqualified in the necessary areas.” Estate of Jaquez v.City of New York, 2015 U.S. Dist. LEXIS 60734, 23 (S.D.N.Y. May 8, 2015)

What Will Follow

As these cases illustrate, many experts can con good lawyers into believing that the expert knows what he or she is talking about, that the expert has proper credentials, and that the expert follows proper procedures and methods to arrive at conclusions.  

How do you figure out whether your expert is really an expert?  

We will explore how individuals may seek to present fraudulent, inflated, or otherwise misleading credentials, facts, conclusions, and testimony in our next three installments, including 1) initial presentation of credentials; 2) preparation of their report; and 3) during testimony.

Authors:

James Cohen, PE, Associate Principal, Building Pathology and Investigations, Weidlinger Associates Inc.

Daniel P. Valentine, Esq., P.E., Senior Project Manager, Simpson Gumpertz & Heger, Inc.

Appointing an Expert with Final and Binding Decision Authority

By Ben D. Nolan, III PE PSP, Managing Director, Construction Consulting, Berkeley Research Group LLP

Based on a True Story

The Situation

Imagine a situation where a large international general contractor has been terminated for default mid-project on two major unbonded educational campus projects on a UK protectorate island.  The government takes assignment of the subcontractors, who happen to be the only competent subcontractors on the island, to continue progressing the work until a completion General Contractor can be hired.  A year later, there has been only an additional ten percent progress and, due to a payment dispute, the subcontractors decide to terminate the government for default. After some negotiation, the parties agree to a termination for convenience and attempt to follow the contract ADR procedures, but they are generally unworkable given the peculiarity of the situation.  As a last resort, the parties agree to a mediation using an experienced Quantity Surveyor from the UK; the mediation fails miserably and the parties are at the end of the contractual ADR options.

The parties are determined to keep the pending dispute out of the island court system, so they get creative.  Queen’s Counsel suggests the appointment of an independent Expert to decide the disputes.  Candidates are identified from a global pool, a short list of face to face interviews are held, the preferred Expert spends a week with the parties working through representative issues and the parties agree on the Expert.  The resulting appointment agreement includes this clause:

“The parties agree that all decisions and awards made by Expert in the course or at the conclusion of the Valuation Exercise shall be final and binding on the parties…and the parties also waive irrevocably their right to any form of appeal, review, or recourse to any court or other authority with jurisdiction, insofar as such waiver may be validly made.”

This clause is the essence of the Expert with Final and Binding Decision Authority (“BDA”) ADR process.  To coin a phrase, I’ll call this particular ADR process the “BDA” process and the Expert the “BDA Expert”.

To Bind or Not to Bind

Having been that appointed BDA Expert and having issued that final, binding decision, I see many complex construction disputes that could potentially benefit from this BDA approach to ADR.  However, US litigators have not been inclined to take the leap of faith required to entrust a BDA Expert with their client’s fate in a construction dispute.  I believe with a little more understanding of their slightly altered role in the ADR process, US litigators could accept this binding ADR process to fairly resolve certain types of construction-related disputes.

There are many popular variations of non-binding ADR which involve independent expert analysis and recommendations, but none that I’m aware of that give the Expert this final and binding decision authority.  The primary reason is that the US litigators want to stay in control of the legal process.  This fear of being out of control (i.e. out of appeal options) is largely unfounded.  In the BDA process, the US litigators are still in control of the legal process, they are simply dealing with a very involved Expert instead of a lesser involved Dispute Resolution Board, a neutral listener, a mediator, an arbitrator, a panel of arbitrators, a judge or a jury.  Any arguments that would be made on appeal are made during the review of the Draft decision.

It is also crucial to recognize the difference between the level of involvement of the BDA Expert and these other triers of fact: the BDA Expert has complete access to all the facts from all parties throughout the analysis phase and decision process.  While the starting point is the traditional plaintiff’s statement of claim, from that point forward, the BDA Expert decides which claims merit consideration, works with the plaintiff and defendant to perfect the claim facts and conclusions, allows rebuttal from the defendant, allows re-statement of claims from the plaintiff, finalizes the BDA Expert analysis and issues a written DRAFT decision.  The parties can respond to the DRAFT decision, discuss any final points with the other parties and the BDA Expert and, after hearing all arguments, the BDA Expert finalizes the decision on that issue.  This process is repeated for all issues that are agreed to be decided.  In my experience, both parties were satisfied with the fairness of each decision, knowing that they had enjoyed the full benefits of natural justice.

Recognizing the Situation to Suggest Expert BDA

US litigators with experience in international construction dispute resolution will likely recognize the BDA Expert model, as it is an established ADR process in international venues.  In the US, disputes with certain characteristics would likely be good candidates for the BDA Expert approach:

• When the parties desire to design an expedited decision-making process on key disputed issues.
• When the parties desire the trier of fact to master the technicalities of large, complex technical disputes in order to fully understand and consider the underlying root cause of the dispute, including:
  • causes of late and out of sequence work,
  • causes of labor productivity problems,
  • assessing “or equal” equipment or material substitutions,
  • causes of equipment and material cost escalation,
  • responsibilities for design versus shop drawing details,
  • causes of equipment performance problems, and other things.
• When the parties desire to have individual decisions on a large number of disputed issues, such as:
  • an independent valuation of base contract work completed;
  • an analysis of entitlement to and valuation of disputed change orders;
  • an analysis and valuation of partially completed value engineering work;
  • a valuation of deductive credits for incomplete work or work not performed;
  • auditing of incurred costs in a termination for convenience;
  • an adjustment of final contract value due to the costs of correcting defective work;
  • an interpretation of disputed contract terms, such as the “value” of work completed under an AIA contract, i.e. is it the contract value or the actual cost incurred?
• When the parties desire to keep the dispute in a private ADR venue.
• When the parties desire to turn the decision over to a trusted third party.
• When the situation is so peculiar that other forms of ADR are unworkable.
• When the parties need to disclose, yet protect, commercially sensitive and auditable information.
• When the percipient witnesses are still available to participate as fact accelerators in the dispute resolution process.
• When the parties desire to maintain their business relationship with each other by reaching a fair resolution.
• When the parties desire an “open-book” approach to dispute resolution.

The Recommendation

Based upon my favorable experience with this BDA process, I recommend that US litigators consider this form of ADR in certain construction disputes.  It is a bold step for litigators to suggest an approach to ADR providing a BDA Expert with such final decision authority.  However, there is more fairness designed into this ADR process than in most other ADR processes, given the opportunities to state and re-state claims and to assure all your arguments are heard, fair and square.

Latest Wave Of The Litigation World -- Technology Assisted Review (TAR), by Jared R. Lake, RCSP, BDO Consulting

Year over year, the main line of legal press generates a fair amount of "noise" with articles in their periodicals, publications, journals, and blogs about the rising expense and burden surrounding the litigation world- as it does with the rapidly changing world of litigation technology. The use of technology has become common place in litigation.  Yet, even as technology related law experiences gains in both admissibility, as well as understanding, parties are under more scrutiny with respect to tolls they have utilized to identify, preserve, and collect electronically store information (ESI).

Enter the latest technology wave to crash into the litigation world- Technology Assisted Review (TAR).  The Blair Maron study empirically established beyond a statistical doubt that humans are not nearly as accurate than they self-reported being when working amidst a heterogeneous data set of documents that have a variety of different data types and formats...or using ad hoc, keyword as the lone approach to identifying relevant ESI, for that matter. This, then, is a very important factor that should be at the root of and interwoven into the foundation of evaluating the effectiveness of automated search technology and accompanying tools with respect to their positive impact on litigation practices.

The 2012 judicial opinion approving the use of said TAR will only expedite its acceptance and utilization of this methodology.  At its core, TAR is a process for ranking or coding a collected corpus of ESI by using a computerized system that harnesses a the knowledge base of a multitude of subject matter experts on a smaller set of documents- and then takes license and liberty when applying them to the remaining documents in the corpus of the collection.

How does this happen?  It could be through a few different methods:

1.      algorithms can be to either show how similar- or dissimilar- the remaining documents are to what has already been coded as "relevant"  to a litigation matter by subject matter experts'

2.      Or by implementing methodologies that develop a set of stringent, systematic rules that essentially emulate the patterns of the expert decision makers processes.

3.      Generally, TAR systems incorporate the use of statistical and/or sampling techniques that serve as a road map of sorts to guide and measure the overall process.

There is, importantly, often an accepted trade-off for the practitioner between precision and volume.  The system to “retrieve more documents” comes with an expense- figuratively and literally- of decreasing accuracy/precision, resulting in the presence of more irrelevant documents.  For this reason, logically, practitioners and litigating parties would be best served to evaluate the use of TAR methods and techniques in a wide range of cases- but particularly in large and complex litigation matters.  For additional background and a glossary of terms, see Maura R. Grossman and Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, with Foreword by John M. Facciola, U.S. Magistrate Judge, 2013 Fed. Cts. L. Rev. 7 (January 2013).

A publication from The Sedona Conference, The Sedona Conference, Navigating The Vendor Proposal Process (2007 ed.), p. 29, summarizes this best:

Technology is developing that will allow for electronic relevancy assessments and subject matter, or issue coding. These technologies have the potential to dramatically change the way electronic discovery is handled in litigation, and could save litigants millions of dollars in document review costs. Hand-in-hand with electronic relevancy assessment and issue coding, it is anticipated that advanced searching and retrieval technologies may allow for targeted collections and productions, thus reducing the volume of information involved in the discovery process.

The trajectory and enormity of growing data warehouses- in concert with human language fluidity/interchangeability, and individual differences- in concert with cost factors- should make this a required approach to litigation going forward.