Construction projects involve many different aspects of engineering, finance, design, construction and operation. Each specialist has a unique view of the project. When the views clash, waste, delays and excessive cost can result.
A construction expert can provide insight into the industry’s standards of care for both explicit and implicit warranties and duties.
Expert Witness Testimony
Experts may be consulted on a range of matters related to the construction industry including, but not limited to, building codes and regulations. Often, these experts are able to provide reports regarding model building codes and local building ordinances as well as related matters such as structural failures and occupant injury.
Expert witnesses are required to have sufficient formal qualifications in the field of their expertise and a degree of academic study. It is also important for them to have a track record of publication and research, as this will enhance their credibility. In some cases, challenges to admissibility of evidence on the basis of lack of formal qualifications or training may fail but, where there are doubts about an expert’s competence, it would be appropriate to seek a re-examination of that expert’s qualifications and experience in light of any new material.
A key part of the expert’s duties is to assist the court by making a contribution which can help the jury decide whether or not there is a case to answer. The expert must make that contribution in the way most likely to achieve the overriding objective of justice. This obligation to the court overrides any duty to the police or other party from whom the expert is instructed (Criminal Practice Directions CPD V Evidence 19A Expert Witness).
An expert should discuss his report with the prosecution before it is drafted and will be expected to comply with the provisions of the CPS Guidance for Experts on Disclosure, Unused Material and Case Management. In addition, prosecutors will typically complete the ‘Letter of Instruction’ template provided with an expert to ensure that a clear purpose is given to the expert and that any preparation costs can be dealt with accordingly.
Expert witnesses should be paid for the work they do in relation to a particular case. It is a good idea for the expert to be provided with a page count of relevant statements and documentary exhibits prior to agreeing an hourly rate for preparation, meetings and conferences. This will avoid any misunderstanding as to what work has been undertaken, especially when expert fees are claimed at the time of trial.
Dispute Resolution
Dispute resolution, which also is called alternative dispute resolution, encompasses several processes by which parties work toward a voluntary agreement rather than going to court. Some forms of ADR include mediation, conciliation, facilitated case-conferencing, neutral factfinding and minitrials. The experts at CCS are skilled in many of these methods, with the most common being mediation and arbitration.
CCS is able to provide expert services to assist in out-of-court dispute resolutions, including serving as a neutral party, or an Initial Decision Maker (IDM) in your project’s contract, which can prevent expensive litigation. Many of the latest AIA contracts allow for the selection of an IDM in addition to a DRA, Dispute Review Board or Panel. Having a neutral IDM with construction expertise to help resolve issues can save time and money on a project.
Construction and remodeling projects often generate legal disputes. Expert testimony is often necessary to determine which party may be responsible for an accident or mistake that occurred on the job. A construction expert can opine on both the explicit and implicit warranties and duties in a contract, as well as standard industry practices and regulations.
A lawsuit involving a construction project often involves a myriad of issues, such as claims relating to the quality of materials, whether safety protocols were followed and the adequacy or feasibility of the design plans. A CCS construction expert can provide scientific and statistical analysis to support an opinion on these issues, as well as a thorough site inspection, including analyzing data from the building code inspector, evaluating cost breakdowns, and determining if project delays were reasonable or caused by negligent actions.
In cases where litigation is inevitable, the expertise of a CCS expert can be invaluable in helping sway the judge and jury. The firm’s principal, Steve Peklenk, is a North Carolina Certified Superior Court Mediator and can provide this service on a contractual basis or through the American Arbitration Association. He specializes in cases involving commercial and residential construction and remodeling, contract and tort law, and the architectural profession. In this role, he has mediated cases involving property damage, personal injury, occupational and environmental injuries, and claims based on negligence.
Third Party Neutral
Expert construction services can help resolve disputes related to a number of issues, including building delays, cost overruns, insurance claims, mechanic’s liens, land use and zoning, licensing and regulatory compliance. The experts will analyze the facts and determine if there is a valid claim or not. They will also provide insight on the standard of care and help pinpoint who is liable for any mistake, error or injury.
A neutral evaluation is a procedure where lawyers and parties present summaries of the facts, evidence and legal arguments in their case to one or more neutral evaluators for assessment. The evaluators then issue an advisory opinion on the strengths, weaknesses and potential value of each side’s position. These neutral evaluators may be attorneys or nonlawyers. The process is designed to avoid some of the costly pitfalls of litigation, such as uncommunicative pleadings and unnecessary or inefficient discovery.
The neutral evaluator does not decide who is right or wrong in the dispute and does not award any money. The outcome of a neutral evaluation is nonbinding, and the evaluator’s report is typically confidential. If the evaluator’s opinion is that the dispute should be settled, the neutral may facilitate settlement negotiations between the parties. If the neutral does not find that the dispute is ripe for settlement, the evaluator may convert the proceeding to arbitration in which the third party will make a binding decision on the issues at issue.
A lawyer serving as a neutral shall not, during the course of an alternative dispute resolution (ADR) proceeding, seek to establish a financial, business, representational or personal relationship with or acquire an interest in, any party, entity or counsel who is involved in the matter in which the neutral is participating, unless all parties consent after full disclosure. This restriction is consistent with Model Rule 1.9(c)(1) regarding conflicts of interest for representational lawyers and former clients.
Consulting
While great construction work used to be able to speak for itself, in the digital age it needs to be accompanied by a strong business strategy that allows the company to reach its full potential. A construction business consultant can provide a fresh perspective and a clear roadmap for the future.
Typically, consulting services are provided to contractors and builders to assist them with a project, or to resolve issues that may arise. They can provide expert witness testimony, site evaluations and inspections, and forensic analysis of projects to determine the cause of accidents, failures, or damages. They can also prepare detailed reports and provide expert opinion and testimony in the resolution of litigation.
Experts can offer guidance on a wide range of topics, including best practices, construction materials, and adherence to codes. They can also conduct thorough site inspections and review documents such as contracts, blueprints, specifications, permits, inspection reports, and other related documents to identify discrepancies or potential sources of dispute. They can then prepare detailed reports and professional opinions about the case at hand, and deliver them to a judge or jury.
Experts can also assist with building and construction project planning, drafting budgets, and providing cost estimates. They can also perform quality control and audits to ensure that construction work is performed in accordance with industry standards. They can also recommend or develop new processes to improve project delivery and performance. They can also help clients develop and implement effective risk management programs and dispute resolution mechanisms. They can even train staff members on how to use construction and engineering technology.