At the Mid-Winter Meeting in Naples, we discussed trial presentation graphics and demonstrative options. But how does the construction attorney decide which particular demonstrative type – bar chart, timeline, “measles” diagram, etc. – will be the most effective method to convey his or her client’s position to the judge, jury, or arbitrator(s)? Consultants and attorneys should discuss the need for graphics and demonstrative exhibits early on in the process to allow time for strategy and preparation. Often times, a collaborative approach works best as the consultant and attorney each offer different expertise; the consultant knows the technical issues he or she is trying to convey, while the attorney has been working throughout discovery and pre-trial to set the themes to be presented at trial or the final evidentiary hearing.
The purpose of this article is to provide examples and suggestions that can hopefully be a springboard for discussion between the attorney and consultant regarding the need for demonstrative tools and exhibits.
In Construction Claims, A Picture is Worth More Than a Thousand Words
“A picture is worth a thousand words” is an old proverb that suggests complex stories can be described by just a single picture. The same is true with respect to proving construction claims, where one visual or graphic can be more persuasive and influential than a thousand words.
Construction is a complex and risky process requiring extensive planning, engineering, procurement, and construction management. When all of these activities operate in concert with each other, the result is a successful project. However, when any one of these activities fails, the result can be a troubled project, often resulting in construction claims.
The claimant typically has the burden of proof in preparing and proving its damages in construction claims. However, oftentimes the decision makers are company executives who may not be intimately familiar with the project details. Therefore, it is essential to boil down and capture the essence of the claim without losing critical details, such as the root causes and resulting damages. Company executives are unlikely to read a 100-page claim, but they will read and study a one-page summary of the dispute. Therefore, it is critical to illustrate in graphical form the nature of the claim.
Some of the more persuasive construction claims graphics are illustrated below along with a brief explanation of why these graphics are effective.
A stacked graph can illustrate the interrelationship between various items over time. In Figure 1, change orders, requests for information (RFIs), the project schedule, and the labor histogram are plotted over time to illustrate that late project changes and RFIs can have a detrimental impact on labor productivity. As shown in Figure 1, excessive RFIs or late changes decrease labor productivity and result in increased labor hours.
Another effective illustration is the so-called “measles” diagram. A measles diagram illustrates the approximate location of various project problems, such as engineering errors, RFIs, or changes. As shown in Figure 2, a measles diagram can be effective on heavily disrupted projects to illustrate that virtually every aspect of the project was impacted.
Loss of labor productivity claims can sometimes be difficult to prove if project data are not available. However, 3D models can be used to illustrate the technical challenges associated with a work activity. For example, Figure 3 illustrates an engineering or fabrication error with a pipe that was fabricated three inches too long. While this may seem like a relatively simple fix, this section of pipe was approximately 120 feet in the air on top of a distillation tower platform. When viewed using the 3D model in Figure 4, the inherent difficultly and resultant decrease in labor productivity of working almost 120 feet above grade becomes obvious.
Construction claims are successful when the claimant artfully and persuasively explains why it is entitled to additional compensation, or in many instances, an extension of the schedule. Graphics can greatly enhance your chances of success with construction claims if they capture the essence of your claim and provide a linkage between the act or omission and the resultant damages. A well-designed graphic may well be worth more than a thousand words, and on large construction disputes, perhaps worth thousands (or millions) of dollars.
About the Author
Chris Sullivan is a Vice President and Principal Consultant with InterfaceConsulting International, Inc. Mr. Sullivan specializes in preparing engineering- andconstruction-related claims and providing litigation support, including consultingexpertise and expert testimony, and has testified in various courts and arbitrationforums. Mr. Sullivan has over 25 years of engineering and construction experiencein the refining, petrochemical, chemical, and oil and gas industries and has workedon projects in Europe, the Middle East, Africa, Asia, and South America. Hehas lived and worked overseas in various capacities including Director of LumpSum Turnkey Proposals and Business Manager on a $200 million lump sum EPCproject. He served as a Project Manager for Foster Wheeler prior to joiningInterface Consulting.