By: Expert No. 8858, P.E.
What a crazy business the construction industry is. Many contractors are, underneath it all, gamblers betting a lot of blue chips. The work is complicated, it is usually awarded to the lowest bidder who will use every means to reduce costs and increase profit. Each job is unique and the principal participants, the general contractor and subcontractors usually are different on each project, thus one is dealing with a different organization and group of people on each project. Often jobs will run over a period of one or more years with the changes in material prices and labor costs, as well as availability of them, being a moving target. Outside forces such as zoning or permitting, over which the parties have little or no control, often influence performance adversely. It is no wonder that so many projects end up with disputes that require resolution. While work obtained on a negotiated basis has the advantage of often using the same general contractor, often the subcontractors will differ from job to job, again introducing an unknown into the project performance. Apart from that, where disputes arise there are different forums for resolution, including dispute review boards, mediation, mini-trials, arbitration, bench trials and full blown jury trials each of which require a different approach. Couple all of this with boxes and boxes of documents being produced during discovery and the problem becomes even more complex. With such a mix it is easy to understand why a busy attorney would wish some added assistance.
In the construction industry, with perhaps the exception of tract housing, most projects differ from one to the next and are unique unto themselves. As a result of this basic characteristic, and given the complexity and the multitude of special conditions which affect each project, plus the fact that often these cases turn on a specific detailed issue, the attorney who is not a specialist in construction law will rarely see the same issues twice in his or her career. The dynamics of a construction project, the responsibilities of the parties under the contract and the interrelationship of the activities on all but the simplest projects are quite involved and can have far reaching effects on the performance on a project and its outcome. As a result it is of great help to the attorney to use a construction expert to assist in identifying and dealing with the specific issues of the case. Some examples include questions regarding normal contracting standards, liquidated damages, beneficial occupancy, changed conditions, scheduling, concurrent delays, long lead item procurement, and quality and standard of care issues. Frequently, issues of permitting or compliance with environmental or regulatory requirements drive the project in adverse ways. A particularly vexing problem may be the varying level of performance of the general contractor, the various subcontractors and suppliers each of whom have different interests, responsibilities and liabilities as the project proceeds. Couple this with the role of the surety and any project guarantors and the interactions multiply almost exponentially. The list could go on and on.
The Specialist Attorney
For the attorney specializing in construction law, the problems are of a somewhat different nature. Because of the experience of the attorney it will usually not be a question of dealing with the dynamic, organizational and performance issues listed previously. It will not typically include schedule events and sequencing, delays and similar concerns but will more often be a need to utilize specialists in more limited but technically complex areas such as cathodic protection, machinery alignment, or noise. Because of the number of technical considerations in the design, procurement and construction of any project, the list again is almost endless. What the practitioner needs in this instance is expert help to provide the technical basis for specific elements of the case. Frequently, help from someone with extensive experience in the particular type of construction is essential to understanding the fine nuances of a particular case. These might include the commercial construction, power, pipeline, school construction, communications, hospital construction, bridge, petroleum refinery, highway, and water supply fields to name a few. So that for a case involving, for example, under strength concrete for a hospital project, a specialist familiar with reactive aggregates, concrete mix design, placing, curing, sampling and testing might well be necessary and if that expert has experience in the hospital or heavy construction field it compliments the required specific technical knowledge. For a case involving rotating machinery in a manufacturing plant, a specialist might be needed for vibration measurement, alignment and balancing and if the expert has manufacturing experience the expertise is strengthened. For a case dealing with subcontractor performance, someone specializing in worker productivity might well be of assistance. Thus if an expert can be found with not only the technical knowledge of the subject but in addition significant experience in the particular industry the impact of the information brought to bear is greatly improved.
As a result, almost regardless of the work cited above, the use of a carefully chosen, experienced expert who can work well with the attorney and can perhaps even assist in the development of trial exhibits can provide significant assistance to formulate a winning strategy for pursuing the case. Often the expert can assist the attorney in focusing on a significant area which might otherwise be overlooked in the development of the case but which might prove to be of great importance. All in all the synergistic relationship which results can prove a winning combination and should be considered wherever possible.
Expert No. 8858, P.E. is a licensed Professional Engineer in California and Pennsylvania, He has 37 years of experience in design and field engineering & project management in the power, mining, industrial & aerospace fields. He has been in charge of all engineering, procurement and construction for nuclear and thermal power plants in U.S. & abroad, some having a constructed value over $3 billion. As former Manager of Quality Assurance for Bechtel, he was in charge of engineering, procurement & construction quality of projects with a constructed value of $18 billion.
Expert has additional extensive experience as an arbitrator and technical consultant assisting attorneys in litigation and brings a broad spectrum of services to Forensis Group’s clients in the areas of construction claims, evaluation, schedule analyses and management review of project problems. He has authored several books including The Wiley Engineer’s Desk Reference, John Wiley & Sons, 1984; and The Wiley Project Engineer’s Desk Reference, John Wiley & Sons, 1994. He holds a B.S. in Industrial/Mechanical Engineering from the University of California, Berkeley with extensive continuing studies in Industrial Management as well as construction planning & operations. He has lectured at universities both in the United States and abroad.
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