David Battle, FCPE
Posted: May 15, 2018 | Legal Advice
On many occasions, as an independent cost consultant, I receive phone calls or emails from legal firms asking to retain my firm as a provider of cost opinions regarding their particular case or issue. During my earlier years of exuberance, I felt honored that I was being called upon to provide this type of service to the industry. I felt I was proficient in providing cost breakdowns of the issues, yet communicating and explaining the cost findings became more difficult. Now that I have some experience throughout the years, I have learned to ask certain questions when I receive the lawyer’s call that can save emotional frustration and position myself to be put into an ethical compromising position.
I learned the hard way, I would do a few things differently now if I had the opportunity to do it over (hindsight is 20-20). The main thing I realized is that I must have a “passion for the issue,” in other words, there needs to be a “slam dunk” of a “smoking gun” issue for me to have the passion to relate my cost solution of the repair. It is very difficult to represent the repair cost for a “picky client” and the court or the jury generally recognizes this type plaintiff. Representing the costs of a “picky plaintiff case” can cause communication difficulties to the cost estimator to the point accusations of ethical counts and a jury perception of “reaching too deep into the cookie jar.”
Therefore, from my experience I would like to pass along some probing questions to ask the retaining counsel to protect frustrations in the future:
The first question I always ask: “Who are all the parties involved in the case, including the plaintiff, defendant(s), opposing lawyers, and opposing experts?” This is important for me to make sure I am not in a perceived adversarial position against my clients such as architects, consulting engineers, owners, or professional organization colleagues. Also, if there is a difficult opposing counsel, chances are that nightmare generating attorney will be deposing you.
The next question to ask: What are the issues in this case, possibly a structural problem? If so, is there a structural engineering report? (Obtain a PDF of the report before you make any commitment.) Structural issues can involve code issues or life-safety concerns, and are more favorable for having the jury’s attention, and take away the attack on the estimator’s ethical focus. Your opinion on cosmetic or appearance issues can be tough to convince the jury, and again makes it difficult to have the passion you need on the witness stand or the deposition, not having to defend your estimate for a quality of work issue.
The next to the last question to ask: What type litigation is the case? Is it arbitration, or a county, state, or federal trial? This determines the format of your curriculum vitae (C.V.) and your report outline.
The last question: Who is paying my firm? Will the attorney guarantee the payment, even if their client does not have adequate funding? Or is there the possibility I can obtain a retainer for the payment?
Once you have made the decision to “jump off the high diving board,” here are a few tidbits I have found beneficial: go to the site of the issue and document the amount of times and dates you went to the site in your report. Identify in your report, names of people you met on site (get business cards). If there are several individuals at the site, be careful of the words you say. Obtain all plans, documents, submittals, daily reports, and expert witness reports in preparing your estimate, and document the source code numbers and any added conditions for each unit price. Let the client know it will cost more to identify the code during the numbers, yet it will save you from being “shot up with bullets” by the opposing counsel during the deposition.
When you provide your C.V., the law only requires you to provide four years back on the cases of your involvement. I found out the hard way in a deposition where the opposing attorney made me go back on cases that were 20 years old, asking specific questions for each case knowing he was trying to make me appear to have memory issues.
During depositions you will be asked how many times you have been on the witness stand and how many times you have been deposed. One of the most important items to remember is to “stay in you swim lane” of expertise. Try only to testify for items you are certified to give opinions. Don’t let the other side try to take you into other expert’s area of expertise. Only stay with testimonial opinions that you were retained for.
Lawyers pride themselves in creating overlapping opinions that conflict with each other. There are some cases where your attorney client may not have other experts and want you to testify for contractual issues, specifically the Division 1 items based on your experience in contracting – if you are comfortable answering the questions. If you are retained for the estimating only, try to stay away from answering questions that require licensed engineer’s opinions. Make sure you have the credentials of belonging to “continuing education organizations” such as ASPE, CERT, and AACE.
As I mentioned, the estimating portion of your services can be natural and performed relatively easily by a seasoned estimator. The difficult part can come down to communicating and defending your estimate. Just remember, anything can happen in a deposition or a court room.
Always be cognizant of your body language by looking “face to face” to the person asking questions. Be respectful to answer the questions and don’t let the “prideful” attorney, asking questions “get under your skin.” Most importantly don’t let the case put you into a compromising position of “stretching the truth.”
About the Author: David Battle, FCPE, is currently the 2018 CERT President, National Certification Committee Member for the American Society of Professional Estimators, and President of Pre-Construction Services, Inc. You can contact him by emailing firstname.lastname@example.org.