A good project manager expert witness will have several other characteristics. The expert will be a recognized practitioner in the construction field, able to articulate an opinion clearly and persuasively and think clearly under cross-examination. He or she will have contributed articles to journals and publications in the construction field. These publications should, however, be reviewed for possible inconsistencies or contradictions with opinions developed in the current case. It may also help to list seminars the expert has presented in the field.
Any conflicts should be discussed at the initial meeting between the construction expert and the attorney. It is important to define the client’s cost budget, including both hourly rates and expenses, and identify precise channels of responsibility and authority. Attorneys should keep in mind evidentiary issues that might change depending on the different types of litigation anticipated, and consider preliminary retaining of the expert, if only to assist in the discovery plan.
Other considerations include:
- establishing a short time lapse between the initial and next meeting;
- discussing how best to use the expert’s knowledge;
- setting short-term goals;
- defining specific tasks;
- scheduling receipt of expert opinions; and
- encouraging frequent communication.
When working with the project manager expert, the first thing one needs is a preliminary opinion. Does the expert support a view conforming to the client’s position? However, a final opinion will not be available until the expert has examined the documents and other evidence available. Sometimes attorneys do not give the expert the full scope of the assignment, meaning changes may come up that cost the client additional money.
The project manager’s role as an expert witness must be taken seriously in the discovery phase, as this can play an important part both in discovery of opponents and in responding to the opponent’s discovery requests. The project manager expert can be extremely useful in the discovery of documents and tangible evidence, as well as in preparation of interrogatories and deposition questions.
Preparing the construction project manager expert witness requires much work by the client’s attorney, as testifying as an expert in depositions or at trial is not easy. It can be difficult to look at the correct document, listen to each word of a question, interpret words and phrases literally, phrase the response so the answer is easily understood by the judge and jury, sound humble, sincere, and certain, and expose one’s background, education, experience, friends, and personal choices to scrutiny all at once.
To prepare the project manager expert to testify, the attorney must first give the expert an opportunity to make an independent review and critique of all documents and determine causation and responsibility. The expert needs to have some understanding of the other aspects of the case if all his or her testimony is to fit together. In addition to the input of the attorney, the expert may have his or her own required preparation.
The project manager expert witness’s style of responding to questions during a deposition should be different from the style used at trial. Attorneys should instruct him or her on this difference, as well as on preferred methods. The expert should be warned one of the purposes of a deposition is to find ways to discredit the expert’s testimony or the testimony of other witnesses through the expert. Experts should also be confident of their own qualifications—their responsibility is to render an opinion on a complicated set of technical facts and to instruct the judge and jury in areas outside of most people’s knowledge and experience.