In any legal case it is very important to establish a true partnership between the law firm and the expert witness. This partnership facilitates an effective, balanced team with both technical and legal knowledge. This will provide the client with the most cost-effective solution and best chance for a favorable outcome during trial or arbitration.
In some legal cases the expert is kept in a strict “need to know” position rather than being a partner. This situation can hinder the expert’s ability to evaluate the situation and add cost due to potential misunderstanding and rework. This can also put the expert in an awkward position during deposition and trial since the legal teams have facts that may not have been disclosed to the expert. This does not mean the expert has to review all discovery materials but rather needs to have a complete overview or summary of all relevant issues in the case. Then the expert can do a “deep dive” into important issues.
Becht Engineering has provided expert witnesses for numerous cases in the past. We make every effort to assure the expert has the right experience in the subject, operates under a strict non-disclosure agreement and has the interpersonal skills to be effective in deposition and trial proceedings. We do ask the legal team to dialog with us to evaluate documents we need to prepare our report and to be fully prepared for the deposition and trial. Sometimes we find the legal team may not recognize critical technical data that will help the case. This can only be brought out through dialog and an open partnership.
Examples of past and ongoing cases include:
- Crane and rigging incidents
- Fatal accidents
- Equipment failures and performance problems
- Plant performance guarantee issues
- Process Safety Management violations
- OSHA violations
- Construction cost overrun and delay claims
- Patent infringement
Case History 1
I worked on a case for about two years involving a construction cost dispute. This case was outlined in my blog published on March 25, 2016 titled “Expert Witness, a Becht Engineering Service to Avoid.” The blog focused on key elements the operating company needed to implement to assure success and avoid problems that could result in litigation. These elements are quite straightforward and include:
- Developing a complete scope of work
- Selecting a qualified contractor
- Using proven industry standards with specific addenda
- Putting a highly experienced management and technical team in the contractor’s office
- Implementing shop and field quality assurance programs
- Demanding timely reporting from the contractor
Unfortunately, in this case these elements were not done well, the cost of the project overran by over 60% and litigation was started to attempt to recover costs.
The engineering and construction contracts had been issued to separate companies on a time and materials basis and the owner took full responsibility for procurement of all major equipment including schedule compliance and fabrication accuracy. The owner did not have an adequate team in place to manage this complex execution strategy. This poorly thought out strategy caused construction delays when engineering was late and there were equipment delivery and quality issues. Based on these facts, I advised the owner and law firm this was going to be an uphill battle before engaging in the case. The owner insisted they still wanted to proceed with the case and needed my expert help.
The original attorney on the case isolated the experts from key data regarding work execution, contracting strategy and other critical elements to fully understand the project and case. This hindered development of a sound strategy to try to recover cost and put us in a difficult situation in deposition. Finally, this attorney was replaced and a great partner was placed on the case. In a short time, the situation was under control due to the open and cooperative relationship between the law firm and the experts. A sound strategy was developed for the arbitration and we were able to make a strong case for cost recovery. The bottom line is if this partnership had been created early in the case, the client could have saved significantly on legal fees and an arbitration strategy could have been established months earlier in the case.
Case History 2
I also served as an expert witness in a failure to pay claim. This case involved construction of a nominal $30MM plant. Since the scope was somewhat vague and the contract was done on and time and materials basis, a contract was put in place where any cost overrun would be shared 25% to the contractor’s account and 75% to the owner’s account. Assuming the contractor performed with the appropriate standard of care, the contract was highly favorable to the owner. This is because the owner would receive 100% value for only 75% cost. The plant ended up costing $36MM, however the owner refused to pay their share of the cost overrun claiming it was due to contractor error and inefficiency. Based on a strong and open partnership with the contractor and contractor’s law firm I was able to demonstrate the contractor met the standard of care and the case was settled favorably for the contractor. This could not have happened without open dialog and access to the plant, contractor and plant personnel as well as engineering and construction records.
Case History 3
It is also critical that the expert have a high level of competency. Becht Engineering pledges to fully vet our experts we propose for a case. We have been involved in cases where the opposing expert lacked the appropriate technical depth. Since we are a partner in the case, we are able to coach the attorney to ask pointed questions to the opposing expert to challenge credibility. Two examples come to mind. The first was an individual claiming to be an expert in the ASME Boiler and Pressure Vessel Code. During testimony he was unable to describe the basic parameters to determine vessel wall thickness; in fact, the “expert” didn’t even know within an order of magnitude the physical size of the code. In another case the supposed expert testified that metallic and non-metallic piping behavior was essentially the same despite clearly written differentiation in the Code (which he was asked to read aloud in court). In both cases the “expert” lost credibility.
About The Becht Expert Witness Process
Becht Engineering has over 1300 experts covering the technical, maintenance and operational aspects of the nuclear, refining and petrochemical industries. Most of these people have over 30 years of experience with major operating companies. Our process includes unpaid consultation with the legal team to assure alignment with our experts and the needs of case. We also evaluate any conflict of interest issues and will provide a formal proposal for our services. After we are engaged we will review case documents and prepare an expert report, rebuttal report or other documents needed by the legal team. Many of our experts have experience with deposition as well as trial and arbitration testimony. We encourage legal teams to engage us early in the process to help support strategic technical direction on the case.
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