Expertise in Dispute Resolution

Welcome to Insight from Hindsight

This is the 24th quarterly issue of Insight from Hindsight — six years. Appropriately, many of the topics in this issue focus on some of the more obvious aspects of expertise in dispute resolution. We have collected a superb group of articles that address how the professionals, lawyers, and experts ply their trade in the most visible aspects of our work — the trial. Trial capabilities, whether it’s the quick mind and tongue of the lawyer (backed up by prodigious preparation), or the expert’s ability to explain extremely complicated issues under fire, are but two aspects of being a construction professional.

Another aspect of being a professional in our field is participation in our professional associations. But, are these associations mere vehicles for marketing, or are they, as I believe, an essential part of advancing our professional capabilities?  For example, I belong to six major professional groups, including the Association for the Advancement of Cost Engineering (AACE), American Institute of Architects (AIA), American Bar Association (ABA), Construction Management Association of America (CMAA), International Bar Association (IBA), and the Society of Construction Law-North America (SCL-NA), and have found that each has great capacity for improving our individual knowledge and capabilities, and some advantage for marketing.  

The SCL-NA is the newest association for professionals like us. The Society of Construction Law (SCL), was founded in the U.K. in 1983, and it has been an active professional association world-wide ever since. It is dedicated to developing and spreading the best legal and construction management practices and has chapters in many common-law and commonwealth regions as well as many code-law countries. Navigant has long been a strong supporter of the SCL worldwide.

However, until this summer, SCL had no North American presence, although any of us who have practiced internationally have known of its existence and may be familiar with one of its most prominent publications, the SCL Delay and Disruption Protocol (SCL-DDP). I think it is fortuitous that SCL-NA was founded this year, just as the SCL-DDP was published in a substantially revised (and improved) edition. The growth of international and cross-national disputes makes the worldwide perspective of SCL an important addition to our professional associations here in North America. I invite you to check out the SCL-NA website and to get involved with this and all your professional associations.

Navigant Construction Forum

Established in September 2010, the mission of the Navigant Construction Forum is to be the industry’s resource for thought leadership and best practices on avoidance and resolution of construction project disputes globally. Building on lessons learned in global construction dispute avoidance and resolution, the Navigant Construction Forum issues papers and reports, makes presentations, and offers seminars on the most critical issues related to the avoidance or mitigation of construction disputes and the resolution of such disputes.

John Livengood
Managing Director

Navigant Construction Forum

In addition to critical path delays, contractors commonly experience subcritical delays and disruptions that necessitate the addition of labor and equipment, arising from problems such as owner-initiated changes, differing site conditions, deficient design, timeliness of change order resolution, or conflicts with adjacent contracts. When problems are subcritical impacts, the mischaracterization of the impact may prevent recovery of costs for legitimate damages. Because of this, proof of critical impacts and proof of subcritical impacts must be handled separately and analyzed via different methods. This article offers insight into fully developed critical path methodology schedules, estimating lost productivity, the slippage of subcritical work to later in the project, and the slow rate of installation of work, compared to plan, over time. 

Robert Neary, Associate Director, Global Legal Technology Solutions
Amy Tsang, Associate Director, Global Legal Technology Solutions

Data analytics tools allow corporations and outside counsel to gain greater insight into massive data populations while providing significant cost and time savings. They aid in categorization, relevance determination, privilege consideration, issue identification, and quality control.

Tools explored in this article include: 

• Predictive modeling
• Near-duplicate detection
• Concept clustering 
• Emerging technologies

Karen Lisko, Ph.D., Senior Litigation Consultant, Perkins Coie LLP

In construction delay disputes, jurors are often highly motivated to pay close attention and are affected by their expectation of how the owner and contractor should have behaved on the project based on their own experiences. 

In this article, Karen Lisko details 12 key juror truths in construction delay cases and outlines the top questions asked by jurors. While every case has different facts and witnesses, keeping these patterns in mind when preparing trial strategy can help you to connect with and persuade a jury. 

Adrian L. Bastianelli III, Partner,  Lori Ann Lange, Partner, and Michael C. Zisa, Partner — Peckar & Abramson

To expedite payment on a government contract, contractors must understand how to work within the system and regulations. The contractor must be vigilant about performing the obligations necessary to obtain payment in a timely manner, including promptly preparing payment applications, REAs, and claims — and aggressively, but professionally, pursuing them with the government. It is important not to sacrifice accuracy for speed, as the contractor may face false claims allegations or recover less than it is entitled. 

Alvin Lindsey, Partner, Hogan Lovells US LLP

Many big case litigators erroneously believe that persuading a jury in court and convincing a panel in arbitration are no different; however, arbitration requires a different set of tools. This article provides professionals who represent parties in international construction arbitrations with tools for winning the arbitration and offers insight on the differences between trying a case in arbitration versus court. 

Specifically, the article details tools for:

• Selecting the arbitral tribunal
• Finding information with limited discovery
• Presenting and cross-examining witnesses
• Presenting a compelling case in writing
• Cross-examining witnesses who have not been deposed

Christine Hasket, Partner, Covington & Burling LLP
Melissa Morea, Director, Navigant
Anna Torres, Owner, Torres Law Group
Sharon Wolfe, CPA, Partner, RWH Myers & Company

The interrelationship of legal and technical concepts presents a challenge unique to the area of technology litigation, but it can be a powerful advocacy if handled well. A lawyer that makes good use of his or her technical expert will present a highly convincing case to the fact-finder. 

This article covers several key considerations involved in working with technical experts, including how to find the right expert for a case, why early involvement by the expert is important, whether and when multiple experts should be used, the impact of procedural requirements governing expert discovery, reports and depositions, and how the effective use of expert demonstratives can assist in case presentation.