Good Experts... Investigate Like Sherlock Holmes, Think Like Lawyers, Write Like Journalists, and Present Like Walter Cronkite

Good Experts... Investigate Like Sherlock Holmes, Think Like Lawyers, Write Like Journalists, and Present Like Walter Cronkite by Pete Fowler. Originally published in The Practitioner (California Law Association).

Introduction

Our company is a team of building experts (Architects, Engineers, Building Inspectors, Contractors, Estimators, Construction Project Managers, Fire Investigators, Developers, Planners, and more) and project management professionals. We are retained to conduct subject matter expert-centric investigations. Many of these assignments are from attorneys where we might be called to testify as expert witnesses. Here is some of what we have learned over twenty-five years.

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Investigate Like Sherlock Holmes

Be quiet and curious. The Greek philosopher Epictetus said “We have two ears and one mouth so that we can listen twice as much as we speak.”

Be a scientist: Observe, hypothesize, predict, test, and repeat as necessary. Develop hypotheses based on evidence; but don’t fall in love with them. The scientific method requires us to look for evidence to disprove our own hypothesis. If there is significant evidence that detracts from our theory, then we need to revise it. Remember: We don’t make facts; we evaluate evidence and draw conclusions.

Be thorough. It’s our experience that enthusiasm is the greatest part of valor in all human endeavor; that elbow grease (work ethic) is more important than genius. When investigating, the best are usually the first to arrive and the last to leave.

Be systematic and organized. Organize all evidence logically and summarize it in sensible lists. Sometimes that’s organized alphabetically, sometimes chronologic, and maybe by party, issue, or some combination. Someone reasonably smart should be able to discern the organizational scheme within a minute of examination. Some subject matter experts are not naturally organized (think mad scientist). This is why we work on great teams. Ben Franklin’s wisdom should prevail: “A place for everything, and everything in its place.” Everything should have a designated place where it is kept, and it should be returned to that place when not in use. This helps to maintain order, reduce clutter, and makes clear thinking easier. If our project file is orderly and we can find key information when it’s needed, people find us more trustworthy. They think “Those people have their act together, and this case is safe in their hands.” If they are on opposing sides they think “I wish we would have hired them.”

Show your work. Just like in math class, simply getting the answer right does not earn the student an A+. We have to show how we came to our conclusions. We document interviews, meetings, and testimony summaries in writing. Onsite investigations are performed in conformance with a reliable “forensic protocol.” The foundation stones of a good analysis can be shown to clients, other key players, and to judges and juries. Good, systematic work is persuasive.

Make a plan and budget. Compare plan and budget to performance, often. Surprising invoices are a quick way to a bad reputation. We exercise “Checklist Management Discipline” because some assignments have so many little things to do, that if we don’t maintain a list, and revisit it often, we get lost among the “trees” of complexity, and lose perspective of the “forest.” Checklist discipline allows us to bounce between the big picture and the details without getting lost or going off on expensive tangents that don’t add value for our clients.

Be right. The fruit of our analysis should be opinions or conclusions that are correct, clear, concise, and precise. Our opinions should be supported to the point that they can withstand brutal cross-examination, and still stand.

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Think Like A Lawyer

Lawyers are smart. No one can pass the bar examination without being smart. They also have to understand the law and legal procedure broadly, research and analyze case law specifically, integrate all applicable facts, ignore a lot of “noise” that is part of most cases, develop arguments, analyze arguments of others, and think and re-think critically about all of the above. Only the best are also wise, emotionally mature, and skilled strategists.

Be qualified. Rule 702 of the Federal Rules of Evidence outlines the criteria for admitting expert testimony, and say a witness qualified as an expert by knowledge, skill, experience, training, or education may provide opinions if they will help the trier of fact (judge or jury) understand the evidence.

Qualifications require experience, and also commonly include professional licenses, certifications, specialized education, teaching, and publications.

Understand Civil Litigation Basics.¹ This includes common case types like construction defect litigation, personal injury, job site accidents, property claims, contract claims, subrogation, and equitable claims. Roles include plaintiffs, attorneys, defendants, insurance companies, insurance professionals/claims handlers/adjusters, cross-defendants or third-party defendants, judge, jury, mediator, arbitrator, and expert witnesses. The stages of civil litigation include pre-filing, pleadings, discovery, pre-trial, trial, and post-trial. There are alternatives to litigation we need to know about, including mediation, settlement, and arbitration. Finally, be on the lookout for the differences between state and federal rules, especially when working in a new state. For us the best examples are state-specific “Builder’s Right to Repair” statutes that have entirely unique rules that we need to follow.

Understand common legal documents including complaints, answers, cross-complaints, third-party complaints, amended complaints or pleadings, interrogatories, depositions, declarations, expert designations, motions, including motion for summary judgement (MSJ), discovery requests, case management orders, subpoenas, trial briefs, jury instructions, judgments, verdicts, post-trial motions, appeals, settlement agreements, and protective orders.

Write reports conforming with the Federal Rules of Evidence, including: (1.) A complete statement of all opinions the witness will express and the basis and reasons for them. (2.) The facts or data considered in forming them. (3.) Any exhibits that will be used to summarize or support them. (4.) The witness’s qualifications, including a list of all publications authored in the previous 10 years. (5.) A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition. (6.) A statement of the compensation to be paid for the study and testimony in the case.

Understand Daubert vs. Merrell² is how expert testimony can be disqualified if it is not scientifically valid, reliably applied, or relevant and helpful to the trier of fact. See “Be a scientist” supra.

Be mindful of strategies for negotiation, litigation, and trial. In litigation being above the game, “playing chess,” is superior to blindly hacking through the jungle. Every case and every lawyer are different. If we think we understand the strategy without having had a direct conversation about it, then we are being dangerously arrogant. We don’t always need to know the client’s strategy. Sometimes it is better to clearly explain our work and let them integrate it into their strategy. Then we stay in our lane and speak only when spoken to (see “Be quiet and curious,” supra).

Lawyers write for a living and are usually the first reader of an expert’s written work. They judge the quality of the thinking based on the quality of the writing. In general, they are correct that the two are synonymous. Good experts are accurate, clear, concise, and precise. And we have learned that even people who CAN read at the collegiate level prefer when we use small words and short sentences. We have also learned that having a good team is the best way to work through complex issues and emerge with correct, clear, concise, and precise thinking and writing.

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Write Like a Journalist

I was a journalism major for a short time in college and it’s one of the reasons expert work came easier to me. I recently testified that a significant part of our work is pure journalism that the parties should not argue much about, because we first gather and explain what the evidence says, including where it is missing, vague, or contradictory. Only then should we engage in disagreement about interpretation of what evidence is more correct or reliable, and our opinions about the evidence.

Investigative journalism is a challenging and time-consuming process involving in-depth research and reporting about significant issues. Investigative journalists are persistent, often spending weeks, months, or even years extensively researching a story. They may delve into public records, conduct interviews, and sift through large amounts of data. This process involves critical thinking, fact-checking, and verifying information rigorously to ensure accuracy, and presenting findings in a compelling, ethical, and impactful way.

Explanatory journalism seeks to explain complex issues in a clear, concise, understandable, and accessible way. The goal is to provide context, clarification, and explanation about complicated topics, so people can make informed decisions. This can involve breaking down difficult concepts, providing background information, interpreting data, or exploring the causes and effects of a situation to help the audience understand the nuances of significant issues. Explanatory journalism often employs pictures, graphics, charts, videos, and other visual aids to help the audience understand.

Summarize! For some the ability to summarize comes naturally; but it’s a struggle for many. We must collect anywhere from 10 to 10,000 pieces of evidence, organize it sensibly, and then write or explain it to someone who has no technical training in our field (like a lawyer, insurance professional, mediator, judge, or jury). In our office we say “Explain it to Pete’s mom.” She’s very smart, but like most of the people who need to use our information to make a smart decision, she didn’t go to engineering school.

Journalists are able to cram an amazing volume of information into a small space. They use a strategy called the inverted pyramid where the most important information is presented first, followed by supporting details. We call our strategy for this “basic analysis.” We begin with a sensible list of all files, players, a timeline of events, and a list of the allegations, complaints, or issues that we will need to support or respond to; this “issues list” often serves as the “logic structure” for our assignment. A building problem is almost always easier to explain using images, maps, plans, photographs, video, diagrams, or graphics, because a picture is worth a thousand words, and the right diagram is worth a thousand pictures. Then we use the 8 W’s (who, what, when, where, why, how, how many, and how much) as a checklist and make as many passes as necessary to write and then explain, in less than five minutes:(1.) overview of the case; (2.) all the information we have to work with; (3.) what we’ve done; (4.) what we think (opinions); and (5.) what we recommend. Experts who can do this become highly sought after.

Be ethical. We decided what our values are long ago, and we stick to them. Anyone who does a lot of expert consulting will be asked to say something they don’t really believe. Thankfully, it is rare. It’s best to decide in advance how to handle it. Our number one value is “Act with Integrity—We never do anything unethical,” so it is easier (although not easy) for us to push back.

Write excellent billing entries. For any amount of time spent, from 0.1 to 10.0 hours, our billing entry should be written contemporaneously and be a one-sentence to one-paragraph mini-report explaining our valuable, professional work. It should be a clear, concise little gem that makes the client think and feel “These people are smart, and this sounds like time well spent!” We need to communicate to clients, clearly and concisely, the value added from that time spent.

Run good meetings. Often, we only get one chance to collect evidence from witnesses. We make meeting agendas and use them as a checklist. We take good notes and save them in the file. And we are sure to integrate everything we learn in our meetings, because it makes project players feel unsafe when they have to tell us the same thing more than once.

Write great reports. We listed some legal requirements for expert reports, above, but the science and art of technical report writing can’t be summed up in a paragraph. First: When we work on a great team, it’s more effective. A close second: “Don’t bury the lead.” We present the most important information at the beginning, rather than burying it in the details. If the reader needs to search to find our conclusions or opinions, we’ve done it wrong. And like all things excellent in expert work: We need to be accurate, clear, concise, and precise. Finally, in explaining complex subjects, “work from large to small,” from the big picture (for orientation) to the details, and make it graphic intensive.

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Present Like Walter Cronkite

Be professional, including on time and respectful to everyone, regardless of how others might behave. Be calm and resilient under questioning in a tough environment like important (and sometimes contentious) meetings, mediation, deposition, arbitration, and trial. Although suits and ties are rarely necessary these days, people still judge professionalism based on how put-together we are, from head to toe: Be well groomed and dressed to impress.

Be credible and trustworthy: Stephen Covey said to be trustworthy we must be both (1.) capable and (2.) interested. If someone is not both, they will not be a good expert. Also: don’t advocate for the client. It’s okay to advocate for the quality of our analysis. Let the lawyers be the zealous advocates; it is their job, not ours.

Be prepared. Always remember the paradox “When the time to perform has arrived, the time to prepare has passed.” This cuts both ways, so prepare prior to performance, but once the time arrives, relax, and let the best in you shine.

Be yourself. If we try to take on some personality other than our own, people will sense our being disingenuous. If you’re not naturally professorial, don’t try to be. If you don’t use words like “heretofore” in conversation, don’t use them in reports. On the other hand, if you’re funny, then it’s okay to be funny sometimes, just not at someone’s expense.

Be confident. If we are qualified and prepared then there is no reason to not present confidently. Be ready to explain your qualifications, without sounding braggy. Look people in the eyes and tell them what we have done and what you think. Don’t fold like a lawn chair; defend our work, hypotheses, and opinions.

Be Approachable and humble. In a 1990 interview Steve Jobs said;

"I’ve had an opportunity to meet a few great people in my life. And they all had one characteristic in common... they treat everyone the same. Whether it’s the janitor or the president of the company... And if a question is asked, they will directly answer that question to the best of their ability. The look in their eyes is exactly the same... Any question asked was the most important question that could have been asked at that moment, as far as Dr. Juran was concerned. And the caring and straight-forwardness that he expressed towards every individual made a big impression on us... But beyond his awesome knowledge of the subject, the way that he viewed people so optimistically that even the most foolish question was addressed with the greatest desire to transmit what he had learned in his life."³

Be like Dr. Juran.

Technological skills are required these days. We need to know how to quickly initiate and join web- meetings on Zoom and Microsoft Teams; and we need to be able to smoothly share our screen and navigate on the computer to “Show your work” (discussed supra). Along the same lines, when people are on a web-meeting in the kitchen with their cat roaming around, or in a dark messy bedroom, it’s less awesome than someone in a neat, professional space with good lighting and sound.

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Conclusion

Being an expert witness is not for everyone who qualifies. We have had several highly qualified experts work with us, and after their first tough deposition decided they just did not like the work. They said things like “Those people are mean!” And they were right. On the other hand, I descend from a long line of hard-drinkin’, bar-fightin’ Irishmen who’s attitude was “Is this a private fight, or can anyone join?!” People who have the suit-and-tie version of that attitude, plus deep subject matter expertise, tend to like it.

Finally, try to make peace with feedback and periodic failure; it’s the fastest route to continuous improvement. Being an expert witness is a rough and tumble business where opposing parties have vested interests in making us look bad. If they only succeed periodically, then we are doing a good job.

Pete Fowler, Chief Quality Officer, Pete Fowler Construction Consultants

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¹Pete Fowler Construction Services, Inc., Civil Litigation Basics for Construction Professionals (Feb. 6, 2024), https://www.petefowler.com/blog/2024/2/5/civil-litigation-for-construction-professionals.

²Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

³Interview with Steve Jobs, Nova Southeastern University (Dec. 19, 1991).

Civil Litigation Basics for Construction Professionals

Civil Litigation for Construction Professionals by Pete Fowler with Contributions by Mikala Glaza. Originally published in JLC’s Builder Guide - November 2023.

As a construction professional, you have probably heard the term “civil litigation.” With the large number of players involved in building projects—including developers/owners, designers, contractors, subcontractors, sub-subcontractors, suppliers, and more—it is nearly impossible to avoid a legal dispute at some point in your career. When two parties just cannot come to terms, they are likely to end up in civil litigation. And with so many parties involved, even the most simple building project can quickly become “complex litigation.”

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From Bad to Worse:
An Example of How Construction Litigation Emerges

This is a painful example of a project type we have seen hundreds (seriously, hundreds) of times. A wealthy family wanting to build their dream home is friends with the spouse of a local custom builder. They reach out to the builder and hit it off immediately; on paper, it seems like a perfect match. They quickly reach an “agreement,” and construction begins with excitement. The builder receives the first few progress payments, and the process seems to be humming along.

Then, things take a turn for the worse. It turns out the “contract price” was really a budget. Every choice the owner makes—from roofing and siding to cabinets and flooring—exceeds the budget’s “allowance,” causing the price to rise weekly. The honeymoon is over. The tension is palpable. The owner and builder barely speak. Adding insult to injury, the owners begin to catch mistakes. Requested changes to bathroom three have been forgotten by the builder. The wrong plumbing fixtures are installed by seemingly incompetent subcontractors. Electrical outlets are in wacky places. Concerned about the situation, the owners audit the invoices and discover discrepancies. They hope these issues stem from negligence, but their concern grows as they notice that each “mistake” benefits the builder.

Construction limps toward completion. A certificate of occupancy is finally issued. The owners move in at last, but the home took twice as long to build and ended up costing twice as much as promised. Even worse, more problems emerge. The wood doors, which the owner insisted on placing in direct sunlight despite the builder’s warning that it would result in warping, have now begun to warp. The home automation system never works. Cooling bedroom two to a comfortable temperature turns bedroom four into an icy meat locker. The first rains come, and water pours into the home from the roof and windows.

The owners insist the builder immediately fix everything. As a precaution, the owners withhold final payment. The builder then stops responding to complaints, causing the owners to go ballistic and instruct their personal lawyer—who has no construction law experience—to file a lawsuit. The owner and builder are now engaged in litigation for years. —P.F.

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Over the last 30 years, I have worked on thousands of litigated projects as a contracting and estimating expert witness. But I am not a lawyer, and a little knowledge is dangerous. For most lawyers, though, their depth of knowledge can actually make it difficult for them to explain the process simply. So, I worked with some lawyer friends to write this plain-language “map of the terrain” of civil litigation for non-lawyers who need to understand the process to help make smart business decisions.

Put simply, civil litigation is any noncriminal dispute resolved by a lawsuit using the court system. These cases are commonly settled before they reach the courtroom, but I will walk you through the entire process.

Common Types of Cases

Civil litigation covers a huge variety of cases, but there are common claim types building professionals face.

Construction defect litigation begins with allegations of physical problems and damage that are usually related to leaks or structural deficiencies but that can be related to any workmanship or performance problems on any building element (roofs, windows, walls, foundations, framing, plumbing, electrical, HVAC, and so forth). Defect allegations might be made during construction or not until many years after project completion. In some states, an entire “CD industry” has developed over the last 40 years, with attorneys and expert witnesses who work full time pursuing and defending these claims.

Personal injury (tort claims) is the type of lawsuit filed when an individual or business has been harmed by another. These claims include injury to someone, their reputation, or property due to fraud, negligence, or intentional acts. Common examples of this type of claim would be an auto accident, a premises liability slip, trip, or fall, a product defect, and many others. The goal is to seek compensation for physical, emotional, and financial damages incurred, including medical expenses, lost wages, pain and suffering, and other related losses.

Jobsite accidents are typically covered by workers’ compensation (see “Insurance Basics for Construction Professionals,” May/21) but, in many situations, a civil suit can also be filed against other parties that might have all or a portion of the responsibility due to negligence. In these cases, OSHA’s rules for multiemployer work sites often come into play.

Property claims refer to insurance or legal claims made to seek compensation for damage or loss to property. The damages are often caused by activities covered by insurance, such as fire, theft, vandalism, or natural disasters. Litigation is required only when the parties cannot agree on the extent and cost of the damages. For contractors, this can occur when they cause damage to property via a plumbing leak, a fire, equipment, or vehicles.

Contract claims arise from a party not fulfilling contractual obligations. These can be simple or very complex. When a contractor abandons an incomplete home-improvement project, unprovoked, it is simple. When a four-year renovation of a $10 million home for a television star goes bad, it is very complex. When a general contractor has a dispute with a trade contractor based on a poorly written contract with unclear terms, it is somewhere in between.

Subrogation claims are pursued by insurance companies to recover money for damages or losses caused by another party that the insurer believes is at fault. For example: If a contractor burns a house down sweating a copper pipe, the homeowner’s insurance will usually pay the claim and then seek reimbursement from the contractor. On large claims with unclear origins, this is sometimes contentious litigation requiring intensive work by expert consultants.

Equitable claims involve one party suing another to prevent a future, harmful act rather than suing for money. If there is a dangerous property, one party can ask the court to make the owner fix it. Or, if someone is doing something that could damage someone else’s property, the court can order them to stop. We have worked on many neighbor disputes over property lines or new construction blocking a view.

Peter D. Fowler

Example project organizational chart. When two or more players in a construction project cannot come to terms, they are likely to end up in civil litigation. Litigants will need to be clear on the roles and responsibilities of each player.

Roles and Responsibilities

As with any aspect of our business, a big-picture understanding of the roles and their responsibilities during civil litigation is an important requirement for construction professionals. Here are the basics:

A plaintiff is the person or company that initiates the lawsuit by filing a complaint against another party with the court. A plaintiff is also known as a claimant.

Attorneys represent plaintiffs, defendants, or cross-defendants. They are often referred to as “litigators” or “trial lawyers.” Attorneys generally manage all phases of litigation from beginning to end.

A defendant is a person or business that a lawsuit is filed against. It is important to remember that, in civil litigation, the defendant is accused of a civil wrong, not a criminal offense. These “wrongs” usually involve a failure to carry out legal duties, such as breaches of contract, or doing something they should not have, like causing damage.

Insurance companies sell insurance policies to insureds (in our case, to contractors) that include a “duty to defend” as well as the “duty to indemnify.” The duty to defend provides the insured with legal representation when they are sued, so insurers hire and pay attorneys to represent insureds. Insurers typically do not pay to pursue claims as a plaintiff. The duty to indemnify pays for any legal judgments against insureds or, more often, to settle for damages that might be the insured’s responsibility. This is a complex topic far beyond the scope of this article. Suffice it to say, as soon as a claim is made or an accident happens, all parties should notify their insurance companies immediately.

Insurance professionals, namely claims handlers or “adjusters,” work for insurance companies and will be assigned to figure out what happened and how much the claim is worth. Early in my career, veteran insurance pros taught me that “a closed claim is a happy claim.” The common belief that these professionals are trying to pay less than the reasonable value of the claim is inconsistent with my experience. Their goal is usually to pay only what they believe the insurer owes, no more nor less.

Cross-defendant or third-party defendant is a third party being sued by a direct defendant in litigation, when the defendant believes the third party is partially or entirely responsible for the claims by the plaintiff. For example: A general contractor is sued by an owner for roof leaks. So the general contractor sues the roofing subcontractor. The roofing subcontractor is the cross- or third-party defendant (see chart, page 16).

A judge plays a different part depending on whether the trial is a jury trial or a bench trial (where a judge renders the verdict, not a jury). In both types, however, the judge is responsible for making sure everyone in the courtroom follows procedure, as sort of an all-powerful traffic cop. A judge should provide impartial, fair, and unbiased rulings throughout the case and is required to follow the law.

A jury includes between six and 12 community members selected to hear evidence and arguments during a trial. At the end of hearing evidence and arguments, they meet to deliberate and render a decision based on the “preponderance of the evidence.” This is in contrast to criminal cases, where the standard of proof is “beyond a reasonable doubt.” The jury decides if defendants are “liable” or “not liable” and determines the amount of damages.

A mediator is a neutral third party, often a lawyer, who facilitates communication and negotiation between disputing parties in an effort to reach a voluntary settlement. Unlike a judge or arbitrator, a mediator does not make binding decisions or impose solutions. Mediators in building claims help parties explore possible resolutions to their conflict, often by explaining the law, exposing weaknesses in the case and strengths of opposing parties’ cases, and calculating the costs of further litigation. This helps parties make a “business decision” rather than seek their version of “justice.”

An arbitrator is similar to a judge in that they oversee dispute resolution, but arbitration is private, outside of a courtroom, and less formal. The parties in the claim make arguments and present evidence and the arbitrator makes judgments on liability. The decision can be legally binding or nonbinding, depending on the language of the contract or situation.

Expert witnesses have specific knowledge, education, experience, specialized training, or some combination thereof in a field beyond what a normal person would have, and they can “aid the trier of fact” (judge and jury) in understanding the technical issues. There can be multiple experts on multiple topics in a single case. For example, a simple building litigation might have experts in leak investigation, product manufacturing and installation, repair costs, and contracting standards of care. Complex cases might have dozens of experts.

Litigation Stages

After a lawsuit is filed, civil litigation proceeds in specific stages.

Pre-filing is anything that happens before a party files a complaint to begin litigation. This is the time when the dispute arises and steps are often taken to resolve the dispute, even before lawyers are involved. Many contracts require mediation before a lawsuit can be filed.

Pleadings are the initial step of filing paperwork by each party in a lawsuit. Pleadings explain each party’s side of the dispute. The plaintiff will file a “complaint” with the court and must also deliver, or serve, the defendant with a copy of their complaint. The defendant will file an “answer,” which is a response to the complaint. A defendant might also file a “cross-complaint” against the plaintiff or additional cross-defendants or third-party defendants.

Discovery is a phase that involves gathering and sharing information, both from parties involved in the case and from third-party sources. Discovery can include requests for copies of documents, deposition of witnesses, and written requests for admission. This is often the longest, most complicated, and most expensive phase in the litigation process, so it is best to have a discovery plan. This should entail identifying the primary issues, determining what needs to be proven to win, deciding if the goal is alternative dispute resolution or trial, and strategizing the most time- and cost-effective path forward.

Pre-trial phase involves preparing for trial. This may include getting evidence in order, preparing witnesses for testimony, having settlement discussions, and offering motions to resolve the case or narrow the issues brought to trial. This phase is typically expensive and stressful for everyone involved.

Trial is where evidence and arguments are formally presented to judge and jury. There are a lot of rules and formality. Both parties give opening statements that are a brief overview of their arguments. Witnesses give sworn testimony, and both sides present evidence, first the plaintiff, then defendants. Ultimately, the judge and/or jury will decide the outcome. It is stressful and difficult and therefore expensive. This is why only 1% or fewer civil litigation cases make it to or through trial. In 99% of cases, trial is best avoided.

Jury trials have a judge to make sure the parties follow the law and to decide what evidence and witnesses can be presented. The judge will also provide the jury with instructions about the law to guide their decision on a verdict (outcome) and the award of damages (usually money).

Bench trials have no jury; the judge is responsible for hearing the evidence and arguments, determining liability, and setting the judgment amount.

Post-trial phase usually involves the prevailing party filing a motion to request the court to order the losing party to pay their costs and fees associated with the case, including costs of the trial. These awards may or may not include attorney’s fees. The post-trial phase can also involve appeal of the case. If the losing party does not agree with the court’s decision, it can file an appeal to a higher court for a second look at the case. These appeals are usually granted only if the higher court finds a legal error, not because of factual evidence.

Peter D. Fowler, adapted by JLC

All civil litigation has a plaintiff, plaintiff attorney, defendant, and defense attorney. Building-related claims often have many cross-defendants (commonly trade contractors and suppliers) and their attorneys, as well.

Alternatives To Litigation

For good reason, most civil litigation is settled before trial. This is usually more cost-effective and time-efficient.

Settlement occurs any time plaintiffs and defendants come to terms to end a dispute before a formal verdict by judge or jury. This often happens during the discovery phase after some facts come to light that inspire the parties to settle instead of going to trial.

Mediation involves a neutral third party (mediator) working with plaintiffs and defendants to negotiate a settlement. This is a nonbinding forum. Sometimes, judges are available as mediators but, more often, lawyers with specialized mediation training are used as the neutral party. All parties, sometimes all together, present their information to the mediator but, more often, the mediator meets with each side individually. The entire process is confidential, and the discussions cannot be used in litigation or trial.

Arbitration, like mediation, involves a neutral third party (arbitrator) to resolve the dispute but is more formal than mediation. It is a form of privatized litigation intended to be faster and cheaper than civil litigation. Many contracts contain an arbitration clause requiring disputes to be resolved through binding arbitration, rather than litigation. Arbitration can be binding or nonbinding.

Pete Fowler, Chief Quality Officer, Pete Fowler Construction Consultants

Artificial Intelligence: The Good, Bad, and Dangerous for Construction, Claims, and Legal Pros

"Artificial Intelligence: The Good, The Bad, and Dangerous for Construction, Claims, and Legal Pros - by Pete Fowler. Originally published in CLM's Construction Claims Magazine - Fall 2023"

Introduction (by AI)

"It's not the tools that you have faith in - tools are just tools. They work, or they don't work. It's people you have faith in or not." - Steve Jobs

"Write me a 1-2 paragraph magazine article introduction about artificial intelligence being a mind extension tool, as defined by Clark and Chalmers' Extended Mind Theory."

ChatGPT-3.5: In the age of rapid technological advancements, artificial intelligence (AI) has emerged as an unparalleled tool, reshaping our understanding of human cognition and pushing the boundaries of what our minds can achieve. Drawing inspiration from the groundbreaking work of philosophers Andy Clark and David Chalmers, the concept of AI as a mind extension tool has gained momentum, revolutionizing our perception of intelligence. According to the Extended Mind Theory, our cognitive abilities are not confined within the boundaries of our skulls, but rather extend beyond them to include external tools. This article explores the profound implications of AI as a mind extension, highlighting its transformative potential and its capacity to augment and amplify human intelligence to unprecedented heights.

Introduction (By Pete)

"The most important tool of the scientist is not any specific experiment or experimental apparatus, but the ability to think critically and independently." - Isidor Isaac Rabi

ChatGPT, the first Large Language Model (LLM) Artificial Intelligence (AI) chatbot made publicly available, was released on November 30, 2022. It surpassed 1 million users in just 5 days, and now has over 100 million. I am a highly technical person with a Bachelor of Science in Construction Management and minor in Information Systems, but I am not an early adopter of technology. I prefer to wait and see if a tool is useful before I use it. I started using ChatGPT in March 2023, and I am happy to report that it is a useful tool.

What are Mind Extension Tools?

"Man is a tool-using animal. Without tools, he is nothing, with tools he is all." - Thomas Carlyle

Explain extended mind theory at the high school level.

ChatGPT-4: Imagine your mind is like a superhero. Now, superheroes sometimes use gadgets to boost their powers, right? Batman has his utility belt, Iron Man has his suit. These gadgets become a part of who they are, helping them to solve problems and face challenges. The extended mind theory says our minds can work like a superhero with gadgets. It suggests that our minds aren't limited to just our brains. Instead, they can spread out and use tools and objects in the world to help us think.

Take your smartphone, for example. You use it to remember your friends' phone numbers, remind you about appointments, or calculate sums. The extended mind theory suggests that, in these situations, your smartphone is acting as a part of your mind, helping you remember things or solve problems. So, according to this theory, our minds are not just in our heads. They can extend into the world around us, using tools, objects, and even other people to think and solve problems better. It's like each of us is a superhero, using our gadgets to boost our powers.

"Give me a list of common Mind Extension Tools, as defined by Clark and Chalmers' Extended Mind Theory... Can you give me more examples?"

Bing Chat: ... some objects in the external environment can be part of a cognitive process and in that way function as extensions of the mind itself. Examples of such objects are written calculations, a diary, or a PC; in general, it concerns objects that store information. In their paper “The Extended Mind,” Clark and Chalmers present the idea of active externalism, in which objects within the environment function as a part of the mind. They argue that the separation between the mind, the body, and the environment is an unprincipled distinction... Other examples of such objects include smartphones, tablets, and other digital devices that store information. In addition to these devices, other examples include eyeglasses that correct vision, hearing aids that amplify sound, and even prosthetic limbs that become part of the body.

What are the oldest mind extension tools?

ChatGPT-4: Mind extension tools have been used since prehistoric times. Here are a few examples: (1.) Stone Tools... [The response included further discussion, omitted here for brevity.] (2.) Fire... (3.) Cave Paintings... (4.) Writing Systems... (5.) The Abacus... These tools show that the idea behind the extended mind theory is not new; humans have been using objects in their environment to extend their cognitive capabilities for thousands of years. However, modern technology, from pen and paper to smartphones and AI, allows for cognitive extension on a scale never before possible.

It's our company's job to conduct forensic investigations, often for lawyers and/or insurance professionals. These investigations include collecting, organizing, and summarizing lots of project data to transform it into information, and then applying a lifetime of subject matter expertise about building and buildings to decide what we think happened versus what should have happened, and how to solve the problem. It's intellectually difficult work with a mind boggling volume of data to consider and synthesize.

To do my job effectively and efficiently, I use many "mind extension tools" including: (1.) written notes, calculations, and drawings on paper; (2.) organizing files; (3.) typing into my computer; (4.) spreadsheets to organize and analyze data; (5.) finding codes and standards on the internet; (6.) scanning and printing documents, and spreading the pages on the floor to get my mind around complex matters; (7.) my smartphone to take photographs, to have it read out loud while I walk or drive, and to type or dictate notes... and even to make calls; (8.) meetings with team members, coordinated in electronic calendars, where we share our ideas; and (9.) presenting to clients for feedback about what they know and think, that I might not have known or thought of.

One of my most important "tools," that many fail to grasp the importance of, is an organized work place with these tools present, in their "proper home," always available. I use a kanban system to never run out of supplies like pens, paper, stickies, toner, staples, etc. This keeps friction and drama low. On the rare occasion I work in a less efficient environment my productivity decreases, like trying to manufacture complex products such as cars or computers out in the dirt and sunshine, the way we build buildings.

AI is my newest tool and it may soon be the most powerful.

AI as a Mind Extension Tool for Claims & Litigation

"The minute you read something that you can't understand, you can almost be sure that it was drawn up by a lawyer." - Will Rogers

I use AI chatbots for simple things like "Reorganize these into a numbered list in alphabetic order: [And I paste in text]" It's simple, but slick. I also ask: "Make this paragraph sound more professional," "Make this more clear," and "Make this shorter." I used AI to help a business owner friend improve a job description. It's not magic or perfect, but better and faster than interrupting a co-worker. I also asked for "Interview questions for potential Chief Operating Officer." The questions were good, and yes, I hired him.

So far, I find AI most useful for writing clearly about what I already know. I have been writing about building and buildings since the 1990s. In 2016 our company published our "Proving the Obvious Using Google" process because we must sometimes refute opinions of opposing experts that we think are silly. We search Google using the right prompt and save the first 10 sources, which virtually always tell us what we already knew, and use that as support for our expert opinion. The most time consuming part is summarizing the information and writing what it means clearly enough for everyone to understand. AI can often do this in seconds.

I recently testified in a deposition related to a construction site accident. It was clear one of the key players did not have a "safety focused culture." It's well known in construction that the right culture results in far fewer injuries, but how do I "prove" it? In the past, I would spend hours "Proving the Obvious Using Google" by collecting, organizing, reading, summarizing, and drawing conclusions. For this matter, AI saved hours of work and our client a lot of money. In a fraction of the time, I was able to compose a Safety Culture Memo that clearly articulated what I already knew. Of course, I backed it up with authoritative original sources, but I did not need to agonize over writing out my own summary.

On another project I saved time and money by prompting "Describe a Kathabar system in a production facility" and followed up with "Describe a desiccant dehumidifier." This is a formal process in our company called "Explain it to Pete's Mom." Like our clients, my mom is very smart, but she never worked in construction and did not go to engineering school. We have to "explain it to Pete's mom" all the time. AI makes this easier.

In our company, virtually everyone requires "Construction Document Literacy," so we have been delivering this training for close to 20 years. I've intended to write an article explaining these 25 most important documents since we began delivering this training. It was going to take at least 50 hours, and I could never carve out the time. When learning to use ChatGPT, I used it to help me write that article in 5 hours! It blew my mind. AI was not perfect; and sometimes dead-wrong. But it saved 90% of the time.

Our technical consultants needed training in Defining the "Standard of Care" so we used AI to inform the discussion. It was fantastic. The information will become a published article and training module commonly used in our work.

These examples are barely scratching the surface of what AI will do for us, even next year.

Asking Good Questions to Get Good Answers

"Judge a man by his questions rather than his answers." - Voltaire

I am trying to explain the importance of, and how to, ask an AI chatbot questions to get the best responses. Can you help?

Bing Chat: ...

1. Be specific: Try to be as specific as possible when asking your question. This will help the chatbot understand what you’re looking for and provide you with more accurate results.

2. Use natural language: Chatbots are designed to understand natural language, so try to ask your question in a way that feels natural to you.

3. Avoid jargon: If you’re asking a question about a specific topic, try to avoid using jargon or technical terms that the chatbot might not understand.

4. Be patient: Chatbots can take a few seconds to respond, so be patient and wait for the chatbot to provide you with an answer.

5. Ask follow-up questions: If you’re not satisfied with the chatbot’s response, don’t be afraid to ask follow-up questions to get more information.

Since, so far, I am only relying on AI to help me speed the work I already have expertise in, I just keep asking questions until it answers in a way that sounds like me.

The marketing professionals in our office are using AI in amazing and creative ways, engaging in "conversation," including feeding the chatbot information like real client testimonials, and having conversations that sound like two marketing savants brainstorming. It's fascinating and fruitful.

Our technology department have described amazing domain specific tools and capabilities for writing code that are far beyond anything I can use AI for as a building consultant, right now. Like me, some of their tasks are being completed in 10-20% of the time required before AI. They tell me "we exclusively use ChatGPT-4 ($20/month). 3.5 (free) felt like a toy, 4.0 actually feels useful... Even with 4.0, I still get a lot of hallucination." In contrast, I actually prefer many of 3.5's responses, including for use in this article.

Dangers Ahead

"The saddest aspect of life right now is that science gathers knowledge faster than society gathers wisdom." - Isaac Asimov

It may sound like I drank the Cool-Aide after singing AI's praises, but beware!

Explain the concept of AI Chatbots "hallucinating facts."

Bing Chat: AI hallucinations in chatbots refer to incorrect results that are vastly out of alignment with reality or do not make sense in the context of the provided prompt. AI chatbots can respond grammatically or logically incorrectly or mistakenly identify an object due to noise or other structural problems. AI models can be convinced of completely untrue facts, responding to queries with made-up answers. For instance, an AI program like ChatGPT can fabricate a historical figure with a full biography and accomplishments that were never real.

By now, most of us have heard about the New York lawyers who were sanctioned in June 2023 for using fake ChatGPT cases in a legal brief. ChatGPT was "hallucinating facts;" but they sounded so convincing that the lawyers who signed the brief did not think to look up the cited cases. So in our work, we must "inspect what we expect." If we don't know it to be true, then we must verify it.

I asked ChatGPT for the applicable building codes for residential site drainage. It's initial responses were helpful. But after a bit of back and forth to get more specific, a saying my mother taught me came to mind: "Often wrong but never in doubt." AI is dangerous, because it always sounds smart, unless you know it's wrong.

I have asked AI to summarize books I have read: Sometimes it does great. And sometimes it's dumb; grammatically correct, but dumb. AI is a powerful tool... Like a chainsaw. Be very careful asking questions that could have wrong answers that you don't know the answers to. I only rely on it for work where I have domain specific expertise.

Conclusion

“There will be two kinds of companies at the end of this decade. Those who are fully utilizing AI, and those who are out of business.” - Peter Diamandis

I am writing an article, pasted in below. Can you draft a conclusion? [Response was too long.] Can you make that shorter?

ChatGPT-3.5: In today's fast-paced world, artificial intelligence (AI) serves as a game-changing mind extension tool, reshaping our perception of intelligence. Inspired by the Extended Mind Theory, AI can amplify human cognition, aiding professionals in various fields like forensic investigations and claims. By asking precise, natural language questions, users can harness AI's potential effectively. However, prudent evaluation is essential to avoid reliance on AI for critical decisions. Embracing AI is no longer optional; it's a necessity for staying competitive in this technological era. Striking the right balance between human expertise and AI capabilities will lead us to a future of unprecedented possibilities and innovation.

In the late 1700s, steam engines brought a significant change to people's lives. They improved manufacturing and transportation, allowing cities to be built away from rivers, which were previously essential for transport and power. This led to a boost in the economy and better living conditions for many. Today, AI serves as a similar catalyst for the mind, enabling users to become smarter and more productive at an incredible pace. AI holds the potential to revolutionize learning and productivity, ushering in a remarkable era of progress.

Of course, modernity has always had it's detractors; those who pine for the good old days. Complaining won't stop AI's transformative power.

Pete Fowler, Chief Quality Officer, Pete Fowler Construction Consultants

Article of the Week: "Turning Negative Thinkers Into Positive Ones"

Introduction

In a recent article from The New York Times, Personal Health columnist, Jane Brody, explores the advantages of positive thinking – even if only for a few moments a day.

Summary

Barbara Fredrickson is a psychologist at the University of North Carolina. She has done extensive research on fostering positive emotions and came up with a theory called "micro-moments of positivity." These micro-moments refer to events from everyday life. Fredrickson's research shows that people who are able to generate positive thoughts and feelings towards everyday tasks are more likely to succeed than those who do not.

Negative thoughts, feelings, and emotions are normal phenomenon of life. However, Fredrickson's research proves that "chronically viewing the glass as half-empty is detrimental both mentally and physically and inhibits one’s ability to bounce back from life’s inevitable stresses." The amygdala is the part of the brain which processes negative emotions. Another researcher and neuroscientist, Dr. Richard J. Davidson found that people who recover slowly from negative emotions such as fear, anxiety, or threat are more likely to develop health problems.

Both Dr. Fredrickson and Dr. Davidson found that practicing mindful meditation with a focus on kindness and compassion generate changes in the brain that increase positive thoughts, emotions, and behaviors.

Aside from mindful meditation, Dr. Fredrickson and other professionals recommend trying a few of the following things to promote a more positive mind:

• Do good things for people around you - even if it's as small as opening the door for someone!

• Appreciate the world around you. It's the little things that make life great. Take a detour to watch the sunset or admire the trees swaying in the wind.

• Develop and bolster relationships. Surrounding yourself with friends and family increases self-esteem.

• Establish goals that can be accomplished. Being un-realistic about goals can be a downer when they don't come to fruition. Aim high, but keep yourself grounded.

• Learn something new. Again, be realistic! Don't frustrate yourself by trying something you're going to fail at - ease into it. The more you learn, the more you want to learn.

• Choose to accept yourself, flaws and all. Narrow in on your positive attributes. The rest are pesky details.

• Practice resilience. Use your negative encounters as learning experience for how to better handle your emotions in the future: "When life gives you lemons, make lemonade."

• Practice mindfulness. "Let go of things you can’t control and focus on the here-and-now. Consider taking a course in insight meditation.

Why We Care

Here at PFCS, we strive to keep a positive environment. To maintain an upbeat atmosphere, it is important that each of us exercise a positive attitude. The more positive feelings and emotions harvested in the workplace, the more productive we can be! The list above is a nice, concise summary of best practices we can use both in our work and in our personal lives.