Project managers as expert witnesses: Part four

Every construction project requires detailed documentation to keep comprehensive and current records. Conscientious, orderly record-keeping involves not only maintaining the information needed to effectively manage a project, but also providing essential preparation for any contract disputes, delays, impacts, and litigation. Adequate documentation may also satisfy a requirement for a logical and supportable demonstration of cause and effect. Documentation lasts where memories fade.

In case the project manager becomes an expert witness, he or she must first examine all project documentation. He or she should consider the primary purpose of the attorney retaining him or her. Some say the primary purpose of retaining an expert is to enable counsel to successfully prosecute or defend a claim.

An expert witness may be used:

  • in preparing the case during depositions;
  • as a witness offering an opinion on a technical matter; or
  • to counter an opposing expert.

An expert retained in a timely manner will be able to help counsel develop damage issues, assist in discovery, evaluate a case’s strengths and weakness, determine equity of settlement, and carry out research and other preparation to avoid surprises at trial. The project manager plays a dual role as consultant and witness, first educating the attorney and then the trier of fact.

Forensic documentation analysis (FDA), one of the strategies an expert witness can implement, is a critique of the project manager’s responsibilities throughout the life of the project. This analysis defines adequate documentation and will exercise the cognitive mind of the project manager.

Schedule-related documents include:

Project managers are engaged as expert witnesses to determine time and cost rather than fault.
  • the work breakdown structure (WBS);
  • data to input for monthly critical path method (CPM) updates;
  • the original, approved CPM schedule;
  • any fragnets (i.e. fragments of a CPM network) made during construction;
  • resource loading data;
  • meeting minutes;
  • activity dollar-loading data;
  • monthly narrative reports;
  • float status at each CPM schedule update;
  • any impacts or delays requested;
  • apportionment of concurrent delays;
  • examinations of all out-of-sequence activity;
  • analysis of S-curve dollars, projected and actual;
  • methodical queries of submittal log status;
  • daily reports;
  • time extensions requested and granted; and
  • all CPM schedule activities.
Forensic research involves the application of scientific knowledge to legal matters, and forensic scheduling analysis refers to using critical path method (CPM) schedule calculation methods to study and investigate events for potential use in a legal proceeding. In other words, it is the study of how actual events interacted in the context of a complex model. This is employed for the purpose of understanding the significance of a specific deviation or series of deviations from the baseline model, along with their role in determining the sequence of activities within the CPM schedule network diagram. A retrospective technique, forensic schedule analysis uses project CPM schedule updates to quantify the loss or gain of time along a logical path and identify the causes. However, it also relies on forward-looking calculations made at the time the updates were prepared.

Like many other technical fields, forensic schedule analysis is both science and art. It relies on professional judgement and expert opinion and usually requires many subjective decisions—but the desired objective is to reduce the degree of subjectivity involved, and to ensure any that remains is based on diligent factual research and analysis whose procedures can be objectified. This can be done by defining standard terminology, identifying and classifying methodologies currently being used for forensic scheduling analysis, and setting minimum procedural protocols.

Recommended minimum protocol for forensic schedule analysis is as follows:

  1. Ensure the data is set at notice to proceed.
  2. Ensure there is at least one continuous critical path, using the longest path criterion, starting at the earliest-occurring activity in the CPM schedule network diagram (i.e. the start milestone) and ending at the latest-occurring activity in the network.
  3. Ensure all activities—except the start milestone—have at least one predecessor and one successor.
  4. Replace controlling constraints, except the ‘start’ and ‘finish’ milestones, with logic and/or activities.
  5. Ensure the full scope of the contract is represented in the CPM schedule.
  6. Investigate and document any milestone dates or other aspects of the schedule violating the contract provisions.
  7. Document and provide each change made to the baseline for purposes of rectification.
  8. Ensure the calendars used for schedule calculations reflect actual working-day constraints, as well as restrictions actually existing at the time the baseline schedule was prepared.

The successful project manager will search through the enigma of forensic schedule analysis and find the answer.

Norman F. Jacobs, Jr. formed Jacobs Consultant Services in 1981 to provide a variety of construction services including cost management, schedule control assistance, project management, and claims preparation and negotiation. Prior to this, Jacobs provided design-build, construction management, and general contracting services for over 30 years, in a variety of capacities ranging from estimator to president and board member. He has chaired Virginia’s Associated General Contractors (AGC) Documents Committee, has presented seminars on construction legal subjects with the Virginia Bar Legal Committee, and is a past president of the CSI Richmond Chapter. Jacobs can be reached via e-mail at

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