The Top Ten Documents Your Expert will Request and Why
Hiring an engineering expert shouldn’t be an arduous task, although sometimes the process may seem overwhelming. Usually the claim is at the point where you want answers yesterday but because of resourcing, workloads, or budgets you are in a time crunch to find them. Even if you are not initially intending to use the services of an expert, gaining access to certain portions of data during discovery is a proactive way to ease trouble or scrambling down the road. Whether it’s for a third party opinion, an independent design, a mediation statement, or a testifying expert, the engineer you hire will likely need information from the sources discussed below.
1. The Claim and Associated Damages
The details of what each party is seeking in the claim are crucial pieces of knowledge for the expert to meet the end goal of stating the facts that are support of the client. It is also important for the expert to know damages, and, when the expert is being tasked with justifying the damages, they need to see the calculation of how you arrived at those damages. The expert must be able to corroborate the calculated damages to facts found during the analysis.
In the case where the expert is tasked with calculating the damages or helping to develop a claim, all relevant correspondence about the issue at hand and the reasons it hasn’t been settled should be produced. On occasion, there are times when the expert is hired long after the claim is filed only for the client to find that the facts don’t calculate out to the damages they initially sought. Furthermore, there are times when an expert, after their detailed analysis, may find additional damages that are not represented in the original claim. The only way to know this is for the expert to have access to the claim information and damage calculation at the beginning.
2. The Contract
It’s obvious that everyone involved in the claim will first refer to the contract to figure out what portions are in dispute. The most important sections that your expert will need to see are those specifically related to the engineering or construction items themselves. The scope of work is the most significant, since we need to know exactly what work was required and if it was done according to the contract. Approved change orders, plus all of the supporting documentation, should also be included as part of the contract scope. Depending on the nature of the dispute, the expert may also request to see the invoicing and payment process, subcontracting terms and conditions, and schedule terms, including liquidated damages and agreed upon milestones. These sections of the contract help the expert determine a base against which all of the documentation discussed below will be measured.
Even if the claim doesn’t have anything to do with schedule, the expert might need at the very least the agreed-upon project baseline and the most up-to-date progress schedules. These two documents, along with the contracted milestones, give an expert insight on how the project progressed, the durations of certain activities, and if there was an obvious delay and how it impacted the end date. In order to have a proper schedule or productivity analysis done, those two schedules are crucial as well as all monthly updates, proposed recovery schedules, and modified baselines. In the case where the contractor is running an actual work schedule different from the monthly updates (perhaps a subcontractor coordination schedule), those should be included so that the schedule analysis can be done thoroughly and efficiently.
4. Drawings and Specifications
A substantial part of the “contract documents” bundle are the drawings and specifications. If a case is a pure schedule analysis or even a cost overrun claim, these may not be as critical as necessary for something related to standard of care; however, they are usually helpful to have accessible. In instances where the architect/ engineer is involved in the claim or it’s a design-build project, iterations of the drawings prior to the construction set may be necessary. For a claim related to the construction phase of a project, typically the bid/construction set, addenda, bulletins, and sketches are necessary to make a proper assessment of the design.
5. Meeting Minutes
Meeting minutes are probably the most underrated documents in a project claim evaluation. They provide valuable insight to the progress of the project, the relationships between parties, and the overall tone of certain situations. If other documents such as the schedules or RFIs aren’t as detailed as they could be, the meeting minutes can help pinpoint questions, concerns, and what activities were taking place at any moment in time throughout the project. Information that may not have seemed critical at the time could be hidden in a look-ahead discussion, design question, progress comment, or “non-action” by a party that doesn’t respond to an item week after week. With helping to find a smoking gun or just a reiteration of a fact already established, the meeting minutes are a critical element to having a solid case.
6. Superintendent Daily Reports
Like meeting minutes, the superintendent daily reports can give your expert a snapshot of the project at any point in time. Though they mostly involve the routine minutiae of everyday work, they may contain nuggets of critical information that help the case. Additionally, the recorded man-hours and activities of the particular time period can be extremely helpful in a productivity analysis or schedule delay claim. Site photographs should also be included with the superintendent records. There are many times that a claim is filed or an expert is hired long after the incident occurred, so photographs of the project state or a specific incident are helpful for the expert to envision the construction site at a point in time. The combination of dailies and pictures can also help back up or override a poor as-built schedule to give the expert an accurate depiction of what actually happened.
7. Payment Applications
The payment applications add a lot more to the story than just the passing of money. The backup included with the invoices can tell the expert the percent complete of specific subcontractors and help with an earned value analysis in the event the schedules aren’t detailed enough. The invoices can also confirm actual contract price, the amount spent at any point in time, and the implementation of approved change orders and their amounts. Additionally, they can be used alongside the daily reports to confirm manpower in a productivity claim. The most important payment applications are the first and final ones, but typically it is most helpful to have the entire catalogue to verify the project costs over time.
8. Requests for Information (RFIs)
The project RFIs provide obvious clues to any issues or speed bumps that might have occurred during the project. Your expert can analyze the content of the questions (helpful in a standard of care claim), the timing of the answers (again for standard of care or for a delay claim) or the sheer number of questions. Depending upon the nature of the claim, a collection of RFIs and responses in a certain subject area can provide a more detailed insight than the meeting minutes, change orders, or even delay issues.
Regardless of what point you’re at when you hire your expert, involving them in the depositions is always an under looked benefit to the case. If you’ve passed the deposition phase by the time the expert is on-boarded, the transcripts can at least be used to pick up on key points for substantiating information found in other documents. Your expert can compare the various deposition points of view to the factual documents and enable you to put together a complete story. If the expert is hired early on you have an advantage in that they can study the documents prior to the deposition and help formulate questions about the project gleaned from the facts found or to fill in gaps in the document history. No matter what stage in the claim process, it is best to keep the expert in the loop on the statements of the key project stakeholders.
10. Email Correspondence
Since electronic communication has become an acceptable form of correspondence, the statements found in email have become another tool for providing project information. Generally, project decisions are made in a formal manner through RFIs, change orders, or even meeting minutes. However, the instantaneous nature of the punch of a button has led to more and more project issues being memorialized over email without formal follow-up memos or letters. Your expert may request emails from a certain party, time period, or pertaining to a certain subject in order to strengthen facts already found in other documents or to fill gaps of knowledge not found elsewhere.
While every claim is different, every analysis starts off the same. Your expert will ask for some or all of the documents discussed above and find the perfect combination of facts hidden within them to make the best possible argument for your case.