Alpha to Omega

ALPHA TO OMEGA OF CLAIMS PREPARATION AND PRESENTATION

Introduction:

The following does not necessarily represent a complete blueprint of how a claim is put together; it does represent most of the steps and many of the “means and methods”, as it were, of a professional’s approach and thought process) to developing a claim and his client relationship.

1.) How the client should work with the professional (Attorney, claims consultant, or technical expert. It is important that the client understand the relationship, its role in the claims process, and actually how a claim is put together.

  • Expectations

  • Scope of Services

  • Fees and Budget; what is the schedule for payments.

  • What is client to do during this process

  • What is professional to do (there are often in complex cases two professionals. The construction attorney and the claims consultant. The relationship of each must be thoroughly understood, and the client must understand that communications with the consultant may not be (and are probably not) protected by the attorney-client privilege so what is told or shown to the consultant is going to be discoverable one day when the consultant is being cross-examined by the other party’s attorney.

  • Where is it to be done

  • Time and Resource commitments

  • Commitment to objectivity, accuracy, realism, and honesty

  • List of probable deliverables by professional

  • How the attorney client privilege works

  • Develop “to do” list with responsibilities and schedule (Continue to update)

 

2.) First Visit to Client’s Office by Professional(lf this is the professional’s first involvement with this client, it is important for him to “get to know the territory,” something about the client, how he thinks, his reputation, the ability to rely on his representations; to listen to his overview of the issues and do a very preliminary evaluation of how he would come off as a witness, how credible his position seems, is it consistent with the contract. And to find out about documentation and where is it; how well organized. And witnesses; are they still in the company, are ex-employees friendly or hostile. This first meeting is a little fact finding, much relationship building and Impression of the client development. And what is the contractor’s financial condition and staying power? What happens to the company if the claim in not successfully resolved and by when? This helps the professional understand the timing for resolution that may determine the resource allocation for claim preparation.

 
  • Check out potential conflict of interest issues

  • Get overview only of the issues. Listen with a “jaundiced ear”. Be careful of giving the impression of agreeing with positions presented as full facts and the other side’s position will not be known at this time.

  • Can you work with this client? Will this client listen to reason? Is there any hope of the client compromising if this case can be mediated?

  • What is your view of the integrity of the client? Of the willingness of the client to accept accountability for its own problems?

  • Be forthcoming with the client about the resources that will be required to complete this case to its conclusion if it can’t be settled. What do you perceive the response to be? Is the commitment there?

  • Who are the employees involved in the project” Are they still in the company? If they are no longer with the company, are they going to be supportive or do they have an axe to grind?

  • Quickly take a look at the cost report. Get an idea of the quality of the estimate. If quantities were seriously underestimated, this means that so was labor. Is the client trying to make up for a bad estimate?

  • Look at the files. How organized arc they? Arc the issues well organized?

  • Ask some basic questions about owner and potential defenses: (This is very preliminary – just to get client’s initial response and see how it stacks up against facts that are later developed.)

    • What is owner’s view of your quality, schedule performance

    • Is he reasonable? Fair?

    • Who in your organization gets along best with him?

    • How tight is the owner’s budget? What are the financial constraints of the owner?

    • How about his designer?

  • Did you keep up the schedule? Give notifications as required?

  • What was your turnover (project Manager, Supt, Foremen. Craftsmen, and subcontractors?

 

All the foregoing varies from case to case, client to client. It is a checklist to gather early impressions and a feel for the client as much as anything else.  And a reality check as well. And the reality check will continue throughout the process, for good professionals are from

“Missouri” and keep testing the validity and integrity of the basis of the contractor’s claim throughout the process. At the end of the visit, a rough draft of the preliminary “to do” list is prepared, to be followed with a formal scope or engagement letter and a more detailed  “to do” list.

 

The “to do” list is very helpful for it schedules (and continues to update) the mutual responsibilities of the professional and the clients; it is a “tickler” for each to check on the progress of the other. Some professionals actually tie their billings to the functions or deliverables set forth in the “to do” list.

 

3.) Contract Review: Various issues will be analyzed later in much more detail, but the professional will review the general/special conditions, and the technical specifications before embarking upon any further review of documents. He will also review the plans to

get a good feel of the project, and will also generally walk the project as well. This, then, puts future review of documents into proper perspective, for all claims must be evaluated within the context of contractual rights and duties. He will also make a list of owner defenses that are inherent in the contract, such as Notice Requirements, Risk Shifting Clauses such as No Damages for Delay, key referenced documents such as soils reports. A complete list of owner potential defenses is set forth in Exhibit “A”. From the beginning, the professional will be preparing the opposing parties defense as well as the client’s claim; that is, he will be identifying issues that will be used as affirmative defenses, or attacks on credibility, or other areas of weaknesses; and he will be able to discuss these fully with his client as he works through the claims preparation.

 

Documentation: Documentation organization often is the most expensive part of claims preparation, and generally the most important. Some thoughts (The following is generic for large, multi-issue delay and impact claims – it is to be tailored to the type of claim and its complexity):

 
  1. First, the system must be set up so documents are easily retrievable. Most professionals and claims consultants use some form of scanning and data base system that allows the professional or his paralegal or the claims consultant to code the documents going into the dam base and be able to retrieve the document by general category (Differing Site Condition) and/or specific category (Asbestos – Third floor, Building “A”). as well as by individual correspondents and meeting attendees, and by date. Thus, at the end of the day, one can call up all the documents that relate to any of the categories that have been coded or all meetings that a given individual attended. In HydraCo vs. Zurn Industries. Pillsbury, Madison and Sutro (because of having all documents scanned but properly coded by issue and various categories) were literally able to “out document” the other side in both depositions and in litigation. The senior PMS litigator would simply turn to a paralegal and say: “Find me the documents relating to the ash fashion temperature of manufactured wood products and which were addressed or copied to Mr. John Doe. In a matter of a few minutes, the documents were retrieved and shown on a screen to the witness who was being cross-examined. The opposition in large part tried the case the old- fashioned way; hundreds of banker boxes filled with documents which paralegals dug through frantically when counsel needed a document that was not at his fingertips. Both law firms were outstanding but PMS had a much better documentation, coding, synthesizing and retrieval process, which gave it the upper hand, throughout the trial. This was also important in witness preparation. The attorney could simply give the potential witness a summary (database) of the documents, let him refresh his memory before the deposition and then study more deeply the pertinent documents in the case.

Other work products that can be developed for graphical presentation will be discussed later, but the database appropriately coded, is the source for such graphics and other work: products for presentation in negotiation, mediation, or another legal forum. The operative words are “properly coded”. Just scanning documents and trying to retrieve efficiently doesn’t work without control over the categories of documents you are trying to retrieve.  For example, if all documents are scanned, and you hit “contract”, you may get all of the proposed contracts. all the subcontracts, all of the correspondence with “contract” used in it. If the contract documents are coded, say: “Fuel Contracts,” or “Fuel Contracts: Manufactured Wood Products,” then the search is greatly narrowed.

 

And once the data is properly organized and retrievable at a click of a button, the professional now can spend his time in analysis.  If there is a “secret” in claims preparation, it relates simply to documentation organization and retrieval.

 

(Note: A whole section will be written on the electronics and software that are available for both job management and claims preparation.)

 

b.   Pre-Contract: Organize and indicate documents preceding contract and Notice to proceed, including the RFP or IFB (and all addenda), estimate, pre-bid investigation, pre-bid conference.

 

Begin developing a checklist: For example, if this is a changed condition claim, what was required in pre-bid; what was done. What should have been done? What documents of a site visit; of potholing, of pictures of site? Were referenced documents picked up by the contractor and reviewed? Had the contractor previously worked in this area; what should he have known from previous experience? Gather records from previous projects in the area as well If special equipment is planned for pile driving (vibratory sheet piling, e.g.) or de-watering for laying pipe in the dry, what documents from provider of equipment supporting it is appropriate, of production rates, etc? In other words, the Pre-contract document file should contain all the information that was pertinent to developing the estimate and complying with the contractor’s duty to understand the site, its conditions, the labor market and productivity, and environmental issues. In the file folder, include personnel who may be witnesses, estimators, the geotechnical representative, equipment (vibratory piling, e.g.), and representatives.

 
  • Analysis: This is the first checkpoint for reviewing the cost report and checking it against the estimate. If quantities were underestimated, probably so was labor. If the project was very difficult, why was a .75 used as a multiplier instead of a 1.0 or above. Just question at this point but need to be examined enough that the professional doesn’t go too far down stream to find out he has spent a lot of money when the client really does not have a claim.

  • We begin making notes for things that must be done: e.g., a profile of the underground conditions from log boring to log boring to give us an understanding of what would be reasonably foreseeable from the borings; if this is a scope or work dispute, we know we may need to take every related document, and do a cut and paste job on the affected drawing(s) so we can read and depict the contract as a whole. Making such notes “in real time” while reading and organizing the documents is essential You think you will later on remember an important thought you had but as often as not it is forgotten. So the document organization phase is that important “first impression, first thought” phase as well. However, do not put judgments or conclusions in the notes, for it is premature to form a conclusion that may very well change when all the facts are in.  In fact, a professional’s conclusions are just that – conclusions – only after all the facts from his client’s files and the oppositions files have been studied, and all witnesses interviewed and/or deposition transcripts studied and the contract and applicable law been appropriately applied.  And when the professional thoroughly understands his client’s strengths and weaknesses, as well as the defenses of the opposing party.

 

c.   Logs and Registers. Gather all logs and registers of deliverables, shop-drawing submittals, RFI’s, changes, and close out documents .

 

Analysis: The logs are peepholes into the performance all the parties to the contract.  Late submittals may indicate mismanagement by the contractor so this must be ultimately explored. Late response to the submittals or RFI’s may indicate the same as to the designer or the owner.  At this point, they are only labeled as areas of suspicion to be further evaluated.  For example, the late MCC submittal may have been caused by RFl’s due to drawing conflicts.  And the rejection by the designer of a submittal for the AHU may have been unreasonable because the designer was trying to get the contractor to change manufacturers to his preferential one.  But the point is: the submittal logs are excellent preliminary indicators of what was happening on the project, something of a litmus test of the quality of the drawings (numerous RFI’s and Change Orders tell us immediately the owner and designer may not have had their acts together in the pre-construction phase, and this may be the ultimate theme of the case).  A review of the turnaround time on the RFI’s and submittals may give us an indication as to the issue of decision-making by one of the parties, and this may become a theme of the development of the claim.  Again, the logs become the basis of questions the professional will want to pursue: “I see the fixtures were delayed because of many revisions to the submittals based on the designer comments. But were the fixtures on the critical path?” Or, “I see there were many RFI’s regarding the pre-cast panels. Were these discovered during the submittal phase or during installation? And if during installation, did the contractor review the drawings prior to fabrication and installation and bring these issues to the attention of the designer on a timely basis?”

 

d.   Correspondence and Issue Files. Correspondence will be organized by most professionals into chronological and issue files. Some professionals will have files organized chronologically by entity (i.e., owner, designer, contractor, subcontractor, vendor, etc.)  It is the preference of most to have an omnibus file with all the patties’ correspondence arranged chronologically, which gives the professional the opportunity to get a feel of everything that is happening in the order that it is occurring. And then, the correspondence is organized in the same manner by issue (such as “Changed Condition- Discovery of Rock”.  It may be the client has issue files already, although seldom are they complete.  For example, most professionals will include all of the documents pertinent to the issue in addition to correspondence, such as daily reports, labor cost reports, equipment reports, expert opinions relating to the issue, project management meeting minutes, minutes of telecom .. If the issue is a differing site condition, or constructive change, or interference with access or delay, the file should be complete with all related documentation. Also included will be a list of witnesses related to that issue that can be gleaned from the documentation organization itself. The issue folder will be further developed as the case progresses, and ultimately include discovery documents. A document summary (database) or document index will be in the front of the file.

 
  • Meeting Minutes: Meeting minutes (weekly and monthly project meetings, contractor planning meetings, subcontractor planning meeting, quality and safety meetings, special issue meetings. These will be integrated into the chronological files as well as the issue files. They will also be coded so that attendees and key information contained in them can be retrieved by issue.

  • Daily Reports: These may very well be used to construct “as builts”; they often contain commentaries about progress, impact events. These will code also and they will be reviewed to see if the comments are helpful or not. For example, often the daily report is on a printed form, and there may be a block to check entitled: Delays or Impacts. If the block checked throughout the project is “no”, or is not checked at all, and there are no remarks about impact to the project, this may belie an impact claim put together at the end of the project.

  • Daily Diaries: In addition to the daily report, individual supervisors may have kept a personal diary. Often the supervisor does not have the diary in the job records and must be asked for separately. It is not uncommon for these diaries to contain unfavorable remarks or language that is not used in mixed company. Supervisors often feel unsupported by the home office, and their diary entries may reflect this. It is also not at all uncommon for the supervisor to make remarks that are uncomplimentary to his home office to an owner’s representative. In fact, this may be the rule rather than the exception. In reviewing the diaries and daily reports, look for indications of such remarks, and in interviews try to develop a relationship of trust with the supervisor that will enable him to tell you if he has made such remarks. Further, the professional checks to see if the remarks are self-serving, at a point in time do they seem to have changed from factual to “case preparation”, in other works made in contemplation of litigation? If so, the document may be inadmissible hearsay. Good advice to the client: You construct and I litigate. Don’t try to play lawyer in your field documentation.

 

Analysis: Coding and retrieval has already been mentioned above. In addition, in the preliminary stage of document organization that is being addressed here, the professional is getting a “feel” of the case, and how his client and the opposing party address issues. Do they attack issues or do they attack each other? Do they accept or try to deflect accountability. Are they reasonable? Are their arguments based on the contract and logic? Many professionals have a paralegal or junior person organize the documents and this may be cost effective. But most of the very successful professionals, “lock themselves up” with the documents and review them with the idea of getting information, understanding the flow of the project, but also getting an insight into the parties. They start developing a sense of what are really the driving forces on the project, maybe some key insights into what it might take to negotiate rather than litigate, as well as where the equities lay. He begins to pick out key areas strength and weaknesses that must be further analyzed and possible cross examination points. As to meeting minutes, the professional can start getting an idea of a number of issues: did the contractor have daily or weekly planning meetings and if not, is this an owner defense. Do the minutes contain harmful or incorrect information that the contractor did not object to when the minutes were circulated for review?

 

e. Quality Documents: One of the main owner defenses is often poor workmanship. So, the quality documents are organized, preferably by CSI Specification Section if possible (For example, Section 15 for mechanical may contain the specification itself, referenced codes and standards, the three step (P- I-F) documents, test results such as DAFT and TAB, correspondence, and, punch lists. One of the “offenses” a contractor hopefully has is: “Look, we did this job right. We gave you a good, quality project that is according to the contract specifications. You got what you bargained for.” This is a strong position for the jury, mediator or arbitrator to hear and will often become a theme of the case: “We did it right. You got what you bargained for. We wouldn’t have a claim if YOU had done it right and we got what we bargained for — good plans and specifications, timely and objective decision-making.

 

On the other hand, the professional must know where his client went wrong and how much that cost the client. For example, if he intends to use a modified total cost approach, the professional must be able to isolate and price out the contractor’s own mistakes. This is not only required for the modified total cost, it shows integrity and accountability on the part of the client.

 

Analysis: All claims are based on a case and effect doctrine. The contractor is only entitled to that cost, compensable under the contract, which is directly related to an act or omission of the owner. He is not entitled to “get well” due to a “bust” in the estimate or losses due to poor workmanship. This also means the direct remedial cost, but also any impact to the schedule or loss of productivity. The professional knows these are owner defenses, and he must identify the areas of workmanship that may be urged as defenses by the Owner and assure that they are properly priced and included if they are significant on the impacted CPM.

 

f. Cost Records: We want to create an “auditable stack of documents”, the job cost report with source documents that go all the way down to the invoices and Purchase Orders. Labor Cost Reports that are stacked on top of the underlying timesheets and time cards, certified payrolls, cancelled checks and tied to the daily reports that report Iabor hours.

 

Analysis: All of these documents are hearsay; the question is whether it is admissible hearsay. So, the professional will start a process for determining that the reports are credible (as they will probably be used to create even more hearsay, ie, as-builts, labor graphs, productivity graphs, etc.) If the source documents are not accurate and credible, then the work products will never be admitted into evidence. So, in addition to gathering the source documents and having some form of audit (extensive or spot check Sampling for example,do the hours on the daily reports match those on the certified payroll; are there any mathematical errors), start thinking in terms of proof that they meet the test of admissibility. Is there a company policy for maintaining documentation; is there a document custodian responsible for setting up policies and procedures; has the company policy be communicated to the supervisors; is there a process for checking the accuracy of the entries while the project is ongoing. A more difficult area to test the accuracy of is the coding of labor hours. For example, most cost reports do not include re-work or material handling and you know some hours are spent on both. And many do not separately cost code changes, or backcharges. This will be dealt with later, but when reviewing the reports as a part of document organization, the professional will want to make notes of these type of issues to explore in more detail or for his expert to explore. And a question that will be considered as the cost records are compiled: Does adequate data exist to demonstrate a measured mile to prove productivity impact?

 

Pictures, Videos. Organize by issue if possible and by date. Some professionals create a word/picture diary creating a composite of the drawings, pictures, extracts from daily reports to tell the story. But what if the pictures are not date stamped . . .take note during document organization and see if there is a way through other documentation to tie the picture to a point in time, A professional will be wary when he comes across pictures that have not been date stamped; instead a magic marker or pen is used to inscribe a date. It may be accurate but it is a red flag: Is this really the date or did someone date after the fact? The opposing counsel will cross-examine on this point to a fairly well.

 

Schedules and Schedule Updates. There should be a “pricing schedule” (that is, the schedule used to estimate the project), a baseline schedule (hopefully approved by the Owner) and then month-to-month updates. Each folder should contain either the hard copy or the index of all documents used to create the updated schedule (RFI’s, etc), as well as the monthly pay requests. Look Ahead schedules are also included. The baseline schedule folder should contain correspondence regarding the owner’s review and acceptance of the schedule and the monthly update files should contain pertinent documents including meeting minutes.

 

Analysis: Hopefully there are electronic files of the monthly updates. Often the contractor’s system picks up the present and future, and discards the past. If so, it is then important to find the hard copies of all schedules and schedule updates. Begin the process of determining if the schedules complied with the contract.  Were they “procurement” schedules (i,e., scheduling the entire submittal/delivery process); did they set for the schedule for deliverables; did the updates contain RFI’s and changes (and weather) as separate activities? Obviously the scheduling consultant will do a complete schedule analysis, but these are questions that should occur to the professional’s team, as the documentation organization process is prepared?

 

i. Subcontractor Files:

 

Analysis: As these files are being examined, note whether the correspondence between the general contractor and the subcontractor is accusatorial of each other; do they blame each other for problems which now are being claimed as the responsibility of the owner? Note whether there was turnover of subcontractors through termination or otherwise.

 

j. Red Line Drawings (As-builts)

 

Analysis: The red line drawings show each line on the drawing that has been changed as a result of RFI’s, RFC’s, change orders or other mechanism. The as built is a powerful document because it is a contractual requirement and has the perception therefore of authenticity. When there have been numerous changes, a set of drawings literally “dripping in red” really gets across the impact of those changes on planning and execution of the work by the contractor.

 

Change Orders – Formal

 

Analysis: Look for two key things here: One did the contractor sign off on time and money on the change orders, thereby constituting an accord and satisfaction? Did the contractor reserve its rights to claim for time and delay damages as a result of the structural change? How was general conditions priced – as a percentage of the cost of the change? Does the contract provide that the contractually specified percentage to be applied as mark up to changes is full compensation for general conditions if the change causes a delay to the project? Does the contract preclude: Eichleay? Damages for Delay?

 

SUMMARY: Documents are literally “witnesses”. Their author can be cross-examined but the document cannot. Labor cost reports are witnesses to when resources were expended and how much. Schedules are witnesses to what was planned to be done and what the actual performance turned out to be. The professional, through the review of the documents gets to “hear” (see) what those witnesses were saying during the course of the job. The documentation phase should produce:

  • A witness list

  • A set of documents coded by issue

  • Issue Files

  • A list of penetrating questions to be asked during interviews or depositions

  • A list of documents to be requested of the opposing party

  • A tentative list of potential owner defenses

  • An outline of the contract general/ special conditions

  • A more detailed “to do” list

 

4. Preparing Scope Changes – Techniques:

  • Prove from the estimate that the contractor did not price this work in its estimate. You want to prove that the Owner received something of value that he did not pay for in the original contract price. The estimate breakdown of many contractors is not in sufficient detail to determine what is and is not covered. For example, a mechanical contractor may cover its hangars, including miscellaneous steel, as a percentage of its ductwork. Thus, if the contractor is required to add steel for hangar support instead of using the concrete deck, for example, and this adds steel and labor, how does the contractor prove that this additional work was not already included in his estimate? The professional may ask the client or an estimating consultant to do a take-off of quantities, equipment and labor for doing the job both ways: simply anchoring into the deck versus adding a steel support system. If the estimate for adding additional steel increases the price for the ductwork, this is a pretty good indication that the contractor did not have cost in his estimate for the additional steel support system. The point is: the professional knows this will be a defense to the contractor’s scope change, that is that the contractor already had this work covered in its original estimate, so he must be prepared to deal with the defense.

  • Prove that the contractor’s interpretation of the contract was reasonable, not that the opposing party’s interpretation was unreasonable. How does the professional go about this task:

Read the contract as a whole. On the key drawing, place the applicable specifications, codes, etc. On this composite the scope of work normally is graphically presented in such a manner that the interpretation of the scope of the work is pretty clear (for or against the client). The use of CAD can be very effective in getting across pictorially the issues (such as showing conflicts between duct and structure or congestion). Scale models also help, for many people have a hard time visualizing in three dimensions. Pictures may also be helpful, especially if they are date stamped when they are made.

 

See if you can find out how other contractors bid the job (if the others did it the same as your client, that’s pretty good test of the reasonableness of the client’s position).

 

How has the contractor done this work on other projects? Especially other projects for the same owner.

 

Often, you can get support from the supplier. Always review the manufacturer’s recommendations; for example the manufacturers’ recommendations for roof installation, for the building cladding (EIFS) may provide as much information or more about how to install (and sometimes even how to design) than the specifications and drawings.

 

Find a third party to give an objective view of the client’s interpretation of the contract. Operative word is objective.

 

The professional wants to know at the outside of the claims the real validity of his client’s position. The colors of the “hired gun” who says what the client wants him to say will eventually show. Successful professionals are honest and objective themselves and they want their team to be also.

 

There have been cases where both parties shared in the expense (and the risk) of bringing in a recognized expert to review the documents and offer his unvarnished opinion of the scope of work.

 

Scope of work changes often involve disputes over whether the contractor performed in accordance with the contract documents: in other words, that the contractor either performed the scope of work poorly and incompletely. A classic example is the Aloha Stadium (where the Pro Bowl is played annually). It is a multi-use stadium, the interior wings of the stadium designed to move on an airfoil system along 90′ concrete runways to form a baseball configuration and then back again for the football bowl setting. It was a great idea that didn’t work because of the undulations and cracking in the concrete runways, their lack of evenness and smoothness, porosity, and out of spec co planarity between runways. The owner (the State of Hawaii) argued that the contractor improperly performed its scope of work, citing the deficiencies just mentioned. The contractor stated that it fully understood the scope of work and did exactly what the specifications required. So, in claims preparation, where compliance with the scope of work (and quality issues) is the issue, the professional takes this approach:

 

My Client Did It Right

If the specifications are prescription ones, the owner warrants under Spearin that if they are followed, the end results will work (in other words, that the contract documents are adequate). So the burden on the contractor is that he fulfilled his side of the bargain, that he complied with all that was required of him under the contract, that he did it right. So, here’s what the professional

does:

  • He has developed a matrix such as below which shows every requirement of the document, a summary of what the contractor did and a reference to the documents which support that:

<<<<<<<<<<<<<<<<<VISUAL HERE REFER TO ORIGINAL>>>>>>>>>>>>>>>>>>>

 

In the case of Aloha Stadium, the contractor had the documents to prove that he had complied with the specified requirements of the contract: from the excavation, subgrade preparation, base course, concrete mix design (including water/cement ratio, shrinkage factors, admixtures) quality records at the batch plant, records at the site by inspectors showing slump and that water was not added to the mix, placement, engineering control, finish and curing.

 

He also had to prove site protection through establishment of temporary systems such as berms. The contractor then did not have to prove why the concrete runways failed (although an expert was called in to explain the reasons so a remediation plan could be devised and implemented) because all the contractor has to do is prove that he did it right. And the best witness is the quality documentation that the contractor maintains proving he used the materials specified, installed as specified. Of course, there are times when the contractor did not meet all the specified tolerances or acceptance criteria. The professional then walks down two other paths: was the criteria for acceptance impossible or commercially impracticable. A tough path not commonly successfully trod, but worth getting an expert’s opinion about. The second path: did the owner or designer do something (acceleration, sequence change) that created a more onerous work environment in which meeting criteria was far more difficult, or did the owner’s representative concur with the contractor’s performance without objection (i.e., waiver, or estoppels).

 

In claims prevention, getting this message across: “Know what to do, make sure everyone implementing it knows what to do, doing it, documenting that you did it” is about the best advice a construction attorney can give to his client. And a further word to the contractor: owners are now demanding what is specified, and “getting away” with sloppy workmanship is just no longer in the cards. And in claims preparation, for the professional to try to use his velvet tongue to convince the owner or the decider of fact that the contractor’s poor quality performance was somehow justified presents a terrific credibility problem that can affect other valid claims the contractor may have.

 

In construction cases, credibility remains the key factor in successful prosecution. The professional wants to try to wrap every issue, every argument in credibility and integrity, for he knows that this is what “sells”, not glib arguments. And for that reason, the professional actually looks for things the contractor did wrong; for indeed not everything is done right all the time in construction. So, he looks for non- compliances, punch lists, comments about workmanship in the meeting minutes and correspondence between general and subs indicating workmanship and progress issues. The professional knows that in negotiation or deposition or trial, the opposing party will ask his client:

“Do you mean to tell me that you did nothing wrong and all the problems were caused by the owner/designer?” The professional wants to know early on the answer to that question and how to credibly deal with it. Being ready for the negative in the professional’s case is as important as preparing the client’s basis of claim.

 

2. Preparing Changed Condition Claims

 
  • Changed condition claims are often very difficult for several reasons. First, the owner and designer may believe they are protected from such claims due to exculpatory and disclaimer clauses, without realizing that more frequently than not the clauses are not complete barriers to a changed condition claim. Second, the owner feels he gets nothing of value from paying for a changed condition: not another yard of concrete or pound of duct. Just the privilege of paying the contractor more money to do the job that is prescribed in the specifications. Third, the litmus paper in many changed condition claims produce a shade of gray, not black or white. That is, few are absolutely “slam/ dunk”. And fourth, in a great number of these claims, the purported changed condition is discovered early on in the project (while excavating the trench or for spread footings, e.g.) resulting in a delay or, worse, a constructive acceleration that may add exponentially to the cost. And when the owner/designer refuse to give direction as required by the contract, or to acknowledge that this is a changed condition, adversarial relations may develop early and afflict the way the parties deal with each other for the duration of the project.  These are the challenges that a professional must cope with as he prepares a changed condition claim.

  • Like the scope of work change, the contractor must prove that his interpretation of the contract documents is reasonable and that he did not price this work in his estimate the contract. In all of these claims it is important to get across that the owner will get a value he did not pay for if the contractor is not reimbursed.  Just the fact that the contractor omitted something from his estimate, though, is not enough. We must get across that the contractor was reasonable in omitting a price for this extra work caused by the changed condition. That is the reason that the first file the professional goes to is the estimate file. This can make or break the claim. He looks for a copy of the referenced documents (soil report, e.g.) If the estimate folder does not have a copy, the automatic presumption is that the estimator did not get a copy or use the information contained in it to prepare his bid. The same for the pre-bid site investigation memo. It goes back to proving the contractor “did it right” – and doing a pre-bid site investigation, including the review of the referenced soils reports, perhaps doing some potholing or other investigation is “doing it right”.

  • The professional must develop fully what the scope of “doing it right” really means in the pre-site investigation. For example, a contractor may review the soils report, decide that the materials are such that the site is “balanced”, that is that cuts and fills will balance out and so he does not include importing material in his price. It turns out that the site was “short” and it became necessary to import material. (Assume the documents are silent on whether materials will need to be imported). In this case, was “doing it right” in the estimating phase performing a “shrink and swell” test of the soils so the estimator would know for certain whether there were adequate on-site materials? Sometimes it will be necessary to bring in another contractor or expert to validate (or not) the estimator’s approach and assumptions.

  • The estimate itself is reviewed If the contractor claims that he planned excavation by machine, but ran into rock that had to be drilled and blasted, the estimate should support this interpretation; that is, there is no line item for drilling and shooting in the estimate. In other words, as in most scope of work claims, the professional looks to the estimate as the first level of interpretation of the contract documents. The materials, equipment and means and methods are reflected in the estimate (hopefully). And so is (or may be) the level of difficulty. The professional must, explore with the contractor the real basis of the claim: is it a different site condition, or was the work just a lot more difficult than he anticipated? If the latter, there is, probably no claim unless the owner/designer did something post-contract to aggravate working conditions (a delay of weather sensitive work into inclement weather, changing the invert elevation of the trench which then came into contact with perched water.) If on that five mile sewer line, log borings are only at pump stations which are a mile apart from each other, did the estimator rely just on those log borings or did he (and should he have) have pot holes dug in between the pump stations to see what the subsurface conditions would have been between the pump stations. If the log borings are outside the footprint of the building, did the contractor have a few “holes punched in the ground” inside the footprint? And in renovation facility, should the contractor get on a step ladder and check out what he will run into above the ceiling; should he do some spot checking of dimensions? These are questions his contractor will be challenged on by the opposing party, so he prepares himself by putting himself in the shoes of the opposing party, and developing the questions and defenses that he would then prepare. This is an absolute requirement of good claims preparation.

  • The professional studies the soils report and specifications to determine if they specified means and methods. For example, if the specifications say to “lay in the dry”, that is a representation that it is possible and practical to do so. If the specifications require the use of drilled piers (to an invert elevation of 50 feet with no caissons), that is a representation that the soils are compatible with the use of that type of drilling operation.

  • Pictures are very helpful in showing graphically the changed conditions as well as the working conditions that resulted from them. (Even when construction oriented people such as mediators or arbitrators are involved in the dispute resolution process, it is very helpful to show them as much graphically as possible. For example, pictures of the vibratory sheet piling from the manufacturer’s handbook, or of that 330 used in the trench excavation with the manufacturer’s comments on productivity, usage and cycle time enable the persons evaluating the claim to better understand the claim and what is involved in it. Sometimes people who know construction may still not know about the equipment or the installation procedure and are embarrassed to ask for an explanation for fear of showing their ignorance. The successful practitioner looks for ways to show simply and graphically and completely the activities, equipment and operations involved in the claim. Recently in mediation, the issue of “Commissioning” came up. The contractor’s representative presenting the claim talked about the impact of the commissioning process and how it was a constructive change to the contract. Finally, the Mediator said: “I am sorry to admit my ignorance, but I don’t know what ‘commissioning’ is. Can you explain it to me?” At this point, the subcontractor’s president said: “I am glad you asked that question because I don’t know what it is either and I have been embarrassed to ask every time I hear my project manager and attorney talk about it.” Whereupon the president of the opposing general contractor grinned and said: “Well, I don’t know either.” So, for months of preparation, hours of negotiation and mediation, a key issue in the subcontractor’s claim – “commissioning” – was just not understood by most of the key players. And fortunately, the mediator overcame his fear of exposing his ignorance and asked the question, which became ultimately the basis for a negotiated settlement. The professional himself must learn to ask questions if he has any doubt about a term, a process, a design, or whatever. Many professionals begin interviews by saying: “I am going to ask a lot of questions that you truly believe to be dumb, and maybe they are to you, but I must make certain that I understand everything involved in this claim, and that I can explain it in such a manner that others will clearly understand what I am talking about as well.”

  • A presentation may consist of a log boring and pertinent excerpts from the soils report and specifications with a summary of what this meant to the estimator. Then on the opposite side of the drawing, a few pictures to show what conditions were actually encountered is very powerful.

  • So, entitlement is a high hurdle in differing site conditions. Entitlement includes NOTICE per the contract. If written notice was not formally provided, then a review of the meeting minutes with the owner and its representative may show that the issue was discussed in meetings with them and they knew the contractor intended to file a claim for extra cost. In many changed conditions, discovery of the opposing party’s documents reveals that it had knowledge (and sometimes even pre- bid during the design phase) of the conditions that would and did produce the claim. Sometimes the owner or his designer will agree in a Request for Admissions that they knew the contractor intended to file a claim.

  • Hopefully the contractor has maintained a separate cost code for each differing site condition. This is credible evidence that comes close to getting maximum recovery; But, if not, the professional has two approaches: one is total (or modified total) cost that is disfavored, and the other is to develop a “pricing statement of work” approach for the extra work itself.

 

The pricing statement of work should use field documents (including daily reports) and will consist of the following format:

 

BASIS OF BID CHANGED CONDITION

 

(Under each category, describe the step-by-step activities that were planned and then actually occurred. List equipment and crew size, and duration. Show Rate

of Production where possible (Caterpillar will have a cycle time on a 330 for example – show the planned cycle time and the actual cycle time if the documents permit, Drilling logs will also show: actual drilling times, which can be compared with planned rate of  production. For equipment operations. the manufacturers have a lot of 1 literature on the productivity of their equipment, which need to be studied for application to the claim.)

 

Also, make sure to pick up increased activities. For example, it may be that more density tests will be required, de-watering will take longer with more maintenance, and additional safety measures must be taken. In other words, develop a very detailed plan of action for everything that needed to be done if there had not been the changed condition, and then a very detailed plan of everything that had to be done due to the changed condition. Then price each. This gives “cause and effect” pricing which is preferred by the courts.

 

What this doesn’t take care of is the delay damages or impact damages if a time extension was not provided. These costs will be discussed later. But again, as many if not most changed conditions occur at the front end of the project, often affecting the critical path without a time extension, often the impact cost is greater than the cost of dealing with the changed condition itself. For example, in the case of the Aloha Stadium the cost of the “fix” was less than $100,000 but the cost of impact and delay damages was over $3,500,000.

 

3. Time Related Claims

  • Akin to changed conditions, time related claims are often difficult for the owner. to “swallow” because instead of getting something of value, he is just; adding to the cost of the project while at the same time often losing revenue because the project has been delayed. Several government negotiators have said: Try to price everything you can on scope of work, even disputed scope of work items, because then the government can justify paying for something of value not included in the base contract. Good advice. unless the pricing is not legitimate and then the contractor runs afoul of Truth in Negotiations. But the cost of doing changed work should include its degree of difficulty and an estimate of the impact it has on other work. These items will be further discussed in the pricing section.

  • The professional should begin with the concept for demonstrating delays and impacts to the schedule caused by the owner. The best approach remains “cause and effect”. The professional, working with the scheduling consultant or the client’s project manager, will explain the three different approaches to demonstrating schedule impact

 
  1. The “Total Cost Approach”. Total cost is simply presenting the difference between the contract price as adjusted for change orders and the actual cost (including mark-ups and profit). This is disfavored in proving cost. The same is true for proving schedule claims. Presenting the contractual duration and then the actual duration and asking for the difference in time between the two has the same built-in deficiencies as the total cost claim. It does not show WHY the delays, who caused the delays, how much of the delay was caused by the contractor. So, the professional will want to shy away from this approach.

  2. Collapsed Schedule.  One begins showing the original contract duration comparing it with the actual duration. Say the difference between the two is 90 days. Then off the tail end of the schedule, the consultant will deduct, say, 30 days due to late equipment installation by the contractor and ask for 60 days due to the changes and interferences by the owner/designer. So, the end date of the actual duration is “collapsed” or reduced by the amount of time attributable to the contractor. Acceptable, but again not the preferred method. However, depending upon the limitation of resources and field documents, it may be the only method that can be used. But the professional must be prepared for the attacks on it: “But it doesn’t take into account all of the delays by the contractor throughout the duration of the project when they occurred. And it doesn’t prove, as there is a contractual obligation to do, that the critical path of the project was delayed as a result of the owner’s actions or inactions, and it doesn’t account for concurrency or the owner’s right to share the use of float … “

  3. The Rolling Thunder Approach. The Corps of Engineers and others have a preferential method of proving delay and impact claims. This approach. begins with the baseline schedule (first month). Then it is updated the second month to show what happened the first month. RFI’s, changes, late submittals or equipment or decision making … and in effect a “new baseline schedule” is developed. Then the next month the same process is repeated so that in real time each month you can see what is happening, who is causing it, affect on critical path and work sequence. This is the ultimate in “cause and effect” schedule analysis, and it is exactly what most scheduling specifications want the contractor to do during the project itself, rather than after the fact.

 

A fallout of this approach is to develop “fragnets” which are simply graphical depictions of key issues that really affected the project. The fragnet will show the activity affected and planned duration, the actual duration, the events such as RFI’s/Changes/Decision Making Delays, and additional work activities which resulted from the changes. The fragnetis a simple and very effective way of getting across the impact of a given change or interference. The fragnet can even have “bullets” of correspondence that was involved in the activity, thereby giving a complete, graphic story of what happened, the impact, and the communication between the parties as it was happening. Sometimes bullets from daily diaries and meeting minutes will also be relevant. Of course, the fragnet can be used in conjunction with any of the approaches to proving schedule impact, not just the “rolling thunder” causes and effects one. One of the reasons that the fragnets are helpful is that it allows one to present the elephant one bite at a time. Another reason is that it gives credibility to the contractor’s schedule analysis. There are many skeptics of Scheduling Consultants who feel that they simply deal in voodoo electronic manipulation. The professional understands this and develops his case to add as much integrity and clarity as possible to the schedule analysis. He is careful in the selection of the scheduling consultant: he wants one who has had both estimating and field experience and not just a software manipulator in the eyes of the opposing party or trier of fact. He wants a sound factual analysis and not an expert opinion filled with the unknown tongue of CPM gurus.

 

He wants one who can speak and make presentations in terms that laymen understand. In a recent claim, the owner’s scheduling consultant rebutted the contractor’s scheduling analysis by providing a graduate level course on scheduling for the first 75 pages, and then about 10 pages in a true factual analysis of the contractor’s delay claim. Needless to say, the case was settled soon after the owner’s attorney reviewed his expert’s report – he knew he may have a scholar but not a winner for an expert and he should get a job as a professor instead of as a claims consultant. In a schedule/impact case, the professional may think of this as a murder case where one forensic expert is pitted against the other. As much as possible, he wants a Dr. Henry Lee, the forensic scientist in the OJ. case who had the credentials, who came off with an aura of total integrity and credibility and objectivity, and who explained one of the most complex sciences in a manner that everyone could understand. This is the model for a scheduling expert. A high standard but this is what wins cases. In a hearing before the State Engineer is a recent case, the scheduling expert came across with such objectivity and professionalism, that the Hearing Officer would ask him (and on the record): “In the future, what would you recommend that we do to prevent these kinds of problems? What is your view of how the State really performed its obligations and what could we do better in the future?” Like Dr. Lee, this expert really came off as a friend of the court, helping the court to better understand the issues and who is responsible. The professional knows that the real value of the expert is to “assist the trier of fact to understand the evidence or determine a fact in issue.” In fact, it may be that expert testimony is not admissible because it does not aid the trier of fact, but instead is used as a legal argument to persuade the trier of fact.” This is the reason many construction attorneys use only one or two construction scheduling experts in claims evaluation and litigation: they have found those consultants who meet the test of experience and reliability who come across as “helpful” to the trier of fact understand the issues. The design professional keeps in focus this basic concept in all claim preparation: make it make it easy for the opposing side

or the trier of fact to understand the elements of the claim and the reasons your client believes he is entitled to compensation.

 
  • When there is a delay and/or impact claim, usually there are the following effects on the project:

  1. A sequence change.

  2. Stop and go.

  3. Durations are lengthened if a delay, contracted if an acceleration.

  4. Manpower is added or overtime is added or both.

  5. Rate of Production is affected.

 

Each of these conditions needs to be shown graphically if possible. Where contractors code their cost by work activity and location (i.e., mechanical layout, floor one) developing the graphics to support the impact is ready facilitated – and graphics of these conditions can really tell the story. If the field documents do not describe location of the work activities, it may be possible to demonstrate from the updated construction schedules, if they are valid and were in fact updated to show the impact. If not, the professional must rely on the testimony of the job site personnel, and indeed, sometimes this is stronger than documents. The professional will check the documents against the recollection of the supervisory personnel anyway for so frequently the two do not match. It will be an essential step for the professional to compare what the documents and as/built or impacted schedules with the statements of the supervisory personnel and if they do not match, try to understand why: The professional must make sure the scheduling consultant is not operating in a software vacuum, and has correlated his schedule analysis with the hard data and the reliable and trustworthy recollection of the supervisory personnel on the project.

 

7. Quantum

 
  • There are three elements of every claim: entitlement, cost and causal relationship between the two. The foregoing relates to entitlement. That is the critical path of every claim, for if the opposing side or trier of fact does not believe the client is entitled to be reimbursed, the cost presentation is academic anyway.

  • However, the cost presentation can bolster the entitlement presentation. For instance:

  1. The use of the measured mile is extremely effective to prove the contractor’s excess cost (that is, he had a unit of 1.0 before the act complained of, and ‘a unit of 1.5 after the owner’s action. At the same time, this is a measure of proof of entitlement for it shows that the contractor bid the project right, was performing well until the issue in dispute arose.

  2. In similar fashion, the contractor may show that his planned monthly percentage of completion gain was 5% and that until the disputed issue occurred, he was meeting that goal, and then it slipped to 3% or less for some months. This is a tool that can be used in pricing (i.e. to develop a productivity impact factor from) and also to demonstrate again that the contractor was in control until the disputed issue arose and but for that issue, the contractor could have met the budget and schedule.

 

8. Owner

 

Contract Defenses Not Related to Job Performance

  • Failure to Prove Written Notice as Required

  • Failure to Comply with Deliverable Requirements (such as Schedule, Update to

Schedule, Shop Drawings, Management Plans such as Quality and Safety and Start-up) on a Timely Basis.

  • Accord and Satisfaction.

  • Lack of authority of owner’s representative who gave directive contractor is relying on.

  • No Damages for Delay Clause

  • Exculpatory and Disclaimer Clauses

  • Other Risk Transference Clauses.

 

Defenses related to Project Management

  • Inadequate work force

  • Incompetent supervision

  • Incompetent project manager

  • Excessive turnover of workforce. supervision, project manager

  • Poor workmanship

  • Inadequate schedule and updating

  • Inadequate managing of schedule

  • Dilatory Progress

  • Quality of submittals requiring excessive time to approve; numerous re-submittals due to revisions the contractor was responsible for.

  • Late deliveries.

  • Failure to maintain an effective quality program.

  • Failure to maintain an effective safety program. High accident rate.

  • Late response to change order pricing requests.

  • Failure to plan the work force.

  • Contractor had plenty of other work to do that he wasn’t doing so should not have been held up by this change.

  • Failure to review drawings in the office to find discrepancies rather than in the field where they caused excessive impact.

  • Failure to produce required coordination drawing.

  • Failure of the general contractor to coordinate subcontractors.

  • Adversarial relations caused by contractor.

  • Excessive punch lists

  • Failure to complete punch lists timely

  • Failure to provide manufacturer’s representatives at start-up and training programs.

  • Failure to follow manufacturer’s recommendations.

 

Defenses Regarding the Claim Itself

  • Total Cost Claim Not Acceptable

  • Did not prove critical path affected by the change.

  • Logic in CPM schedule is flawed: does not eyen show correct critical path.

  • Failure to show cause and effect

  • Double pricing: arithmetical errors

  • Failure to show contractor’s own problems and price

  • Concurrency not shown

  • Attempt to recover overrun due to contractor’s own problems

  • No documentation to support claim

  • Use of impact factors (such as MCAA or NECA) not supported by field documentation or what happened on this job.

  • Baseline schedule prepared by a scheduling consultant after the project was complete and did not reflect the contractor’s original logic. Consultant trying to create an illusion not related to reality.

  • Pictures have dates on the back in magic marker. No proof that these are the correct dates.

  • Daily reports do not support the claim – daily reports do not have any comments about impact or being held up as now being claimed.

  • Meeting Minutes have statements adverse to contractor’s position and nothing in the record that contractor objected to the accuracy of the minutes.

  • Labor not accurately coded.

  • Cost report shows that material was substantially underestimated or missed, resulting in a labor overrun as well; yet contractor is trying to get additional cost for this work activity.

  • Even if Eichleay not barred by contract, not applicable in this case as no suspension of work, no proof that contractor was unable to bond additional work.

  • Contractor had a duty to mitigate damages and yet during delay kept craftsmen and equipment on the project unnecessarily, now trying to be reimbursed for them.

  • Various factors not supported by audit, such as small tools percentage, and labor burden.

  • Contractor has priced certain overhead items (such as project manager) in direct cost when the project managers are actually carried in the company’s overhead account.

  • Equipment was not priced using contractual pricing guide (such as AGC, o CAE, ete) double pricing as the contractor used “wet rates” for equipment and then separately priced fuel and maintenance. Contractor did not take into consideration down time and loss of productivity due to condition of the equipment. Contractor actually used the wrong equipment for the project, resulting in productivity losses.

  • Contractor’s project manager and superintendent have often complained of lack; of home office support.

  • Contractor failed to understand the degree of difficulty of the job (for example., the ceilings were 40 feet high and the mechanical and electrical contractors did not; include added cost and time for working off scaffolds and the increased cost of material handling. Or the electrical contractor did not take into consideration the: increased cost, floor by floor, of a 30 story, high rise building or the complexity of all the duct, conduit and piping above the ceiling.)

  • Contractor did not attend the pre-bid meeting where he could have asked clarifying questions.

  • Contractor failed to pay subs and suppliers on a timely basis, causing slow down.

  • Contractor did not have adequate lifts, lay down areas; did not do site protection: resulting in mud flowing on concrete slabs, or access maintenance.

  • The contractor did not maintain the workflow originally planned through no fault of the owner.

  • Subcontractors were terminated for default.

  • Correspondence between the general contractor and the subcontractors blame each other for the problems on the job.

  • Contractor claims early owner caused delays but pay requests show he was on or ahead of schedule. Monthly payment requests are not consistent with scheduling consultant’s analysis of delays.

 

Forum: Preparation of the claim also involves an understanding of the forum the claim will be presented to. At one time, cases that were not negotiated were basically tried in front of a jury. Today, the first way station along the way is Mediation or other forms of ADR and the jury hears a case. One of the largest construction law firms says that at least 90 per cent of its cases settle before trial. In the federal sector, mediation is also a stop along the way, and often a final destination where claims are settled.

  • The question is: is the preparation the same or different? If a professional knows that the odds are the case will probably be settled, is less effort in preparation prudent?

  • And the answer to that question is generally no; there may be fewer trial type , exhibits and less logistics in getting ready for trial But cases, which get settled well,i are prepared welL Often, cases get tried because one or both of the parties didn’t fully understand the issues and the risks involved.

  • So, the successful professional wants to be well prepared in any forum,

  • However, if this claim is subject to mediation or arbitration, it will be presented differently.

 

Mediation

  • The mediator is not a trier of fact. He is there to help the two principals understand the case, and their risks and to come to a reasonable business resolution; that settles the dispute. Depending on the style of the mediator, he is not a . “decider” but rather an “influencer”. Each counsel wants to influence the mediator to carry his message to the other party when they are in caucus and to try to persuade the other party to move to a more favorable position. So, the choice of the mediator is part of the preparation, the same as the choice of an arbitrator or voir dire of prospective jurors. In some areas, all the construction attorneys and mediators know each other; have tried cases against each other. So, does one go outside the jurisdiction to be assured of an unbiased mediator? Or is it sometimes helpful to select a prestigious mediator known and respected by both parties who will value his comments and opinions and who will listen to what he has to say. Often the professional has attempted to negotiate the dispute but his hands were tied by the client; yet the professional knows the case should settle and the range of settlement. Thus, this professional may want a mediator who is reasonable but also strong and who will “help” his client understand that this case is better settled than tried.

  • Preparation for mediation is different in that the professional is trying to persuade two people, sitting within a few feet of him. One is the mediator, as indicated above, and the other is the opposing party (often not so much the opposing counsel, but the opposing principal who has the authority and hopefully the desire to settle this case today). Preparation will be to understand something about the character and personality of the opposing principal; is the fair? Unreasonable? Detailed oriented or broad brush? How big is his ego? What could he hear that would help “warm him up”. And at the same time, the principal is probably sitting there with two or three of his employees who were on the job and the professional knows that they, like perhaps his own client, have had meeting after meeting attacking his client and fonnulating their own position – – -and that the principal’s employees don’t want to be sold out by the principal. So, preparation involves knowing who will be sitting with the principal, what are their attitudes, who is the main influencer in that crowd, who to really direct your remarks to. Etc.

  • Of course, mediation is generally of much shorter duration. One may have an hour or less to get his point across (in the U. S. Supreme Court the lawyer has thirty minutes, most of which is taken up by questions from the Justices). Thus preparation must be like for the Supreme Court: what are the real issues here, how best to explain those issues thoroughly but briefly and clearly. What few graphics can be used which gets the point across?

  • And the same time, prepare for the one or two key points that can be used to attack the position of the other party in advance of him giving his presentation. With such limited time, if one of the parties messes up with even small errors or misstatements in his presentation, the ensuing explanation truly just consume the remaining time for arguments and presentations, and there you are in the caucuswith the mediator trying to get him to understand the reason for the error rather than what your claim is about. The smaller the surface, the more a foreign object stands out in it. The shorter the duration, the greater the negative impact of an error in the presentation.

  • Another difference in mediation is that the “witness”, that is an employee of the principal sitting across the table from you may be able to attack your case, or you, or to ask you a question. Again, preparation involves knowing the parties across the table, their temperaments and hot buttons, and key positions they have taken in the past.

 

9. The Devil’s Advocate

  • The professional always tests out his theories and concepts in a “devil’s advocate forum”. Sometimes, on the larger scale, this takes the form of a moot court. Although an added expense, it pays off. Probably most cases argued before the U.S. Supreme Court was first argued in a moot court type forum. On the other end of the spectrum, the presentation can be made to a fellow member of the firm, or a member of the client’s firm. Sometimes, the professional has key witnesses cross-examined by a third party.

  • But to some extent, to be successful means to be tested and scrubbed over in your office rather than in court or in the mediation or arbitration forum. Search hard for the weaknesses in preparation because you know the opposing side is doing so as you prepare.

  • Many professionals will say that they prepare the other side of the case first and then their own. That doesn’t mean full preparation, but it does mean to understand well where the other side will be coming from and its defenses.
 
Tom Frisby

Tom Frisby is: a management consultant with a legal, construction and financial background; is a negotiator, expert witness, mediator, author, educator who has managed a successful construction consulting firm for over forty years.

For more information on services offered please drop him a line:


 

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