Testing Expert Evidence℠ – Page 2

Dr. Patricia Galloway, Mr. Jack Dignum and their late partner Dr. Kris Nielsen each spent over 30 years of their careers preparing and writing expert reports and testimony and identifying flaws in other expertsÕ analyses and have experience in a wide variety of projects in the energy and infrastructure industries in over 60 different countries. Dr. Galloway and Dr. Nielsen each spent the 30-plus years presenting expert testimony in mediation, depositions, jury trials, bench trials and domestic and international arbitrations in “bet the company” cases with hundreds of millions and even billions of dollars at stake.

Collectively, their areas of expert testimony included:

  • Management Process and Decision-Making
  • Risk management
  • Scheduling
  • Delay
  • Acceleration
  • Manipulation
  • Productivity
  • Cumulative Impact
  • Fraud/Misrepresentation
  • Trade Practices Act (Australia)
  • Bid Rigging
  • Standard of Care
  • Termination
  • Workmanship/Quality Control
  • Construction Defects
  • Subsurface Utility Engineering
  • Damages Quantification
  • Direct
  • Indirect
  • Home Office Overhead
  • Time-Related
  • Productivity Related
  • Cumulative Impact
  • Lost Profits
  • Estimates
  • Engineering
  • Technical
  • Errors and Omissions
  • FEED
  • Feasibility
  • Detailed Design
  • Management
  • Emerging and New Technologies

Finding a well-qualified, third-party expert who can critically and objectively scrutinize a testifying expert's analysis before it is turned over to the other side can be difficult, with good reason. Most well-known and well-qualified experts typically act as testifying experts throughout their career. As a result, many lawyers and/or experts would be reluctant to seek an unbiased peer review of expert reports and testimony for various reasons including: conflicts of interest, could most probably be viewed warily readily dismissed by most testifying experts for fear that the reviewing expert would be considered a competitor and might learn of “trade secrets” or fear that the work could be used to a competitive advantage by the reviewing expert. Further, many litigators are not subject-matter “experts,” and although they are very good at questioning experts and outlining the scope of issues to be addressed in the report, they typically do not have the necessary training or background to dissect a report and/or testimony to determine whether it conveys accurate and supportable findings and conclusions. Thus, up until now, there has not been a resource available to counsel that has experienced large complex construction disputes from both an expert and arbitrator view and who pose no conflict with the testifying expert.

Dr. Galloway and Mr. Dignum no longer serve as construction-dispute testifying experts. They have shifted their practice to serve as mediators and arbitrators and to advise clients in the energy and infrastructure industries.1 Those advisory services include “Testing Expert Evidence”. Thus, the testifying experts should have no concern that any “trade secrets” could be shared with competitors or that Dr. Galloway and Mr. Dignum would seek to displace them as experts in this or other cases. Instead, the testifying experts will have an opportunity to see how another experienced, peer expert views their work product before it becomes final. All information gathered and/or reviewed in “Testing Expert Evidence” is held strictly confidential and is not shared with anyone except retaining counsel and, if counsel requests, with the testifying expert. Further, Dr. Galloway and/or Mr. Dignum always conduct a conflict check prior to accepting any engagement to assure no conflicts with other clients/arbitrations.
1 Dr. Galloway and Mr. Dignum do continue to conduct management audits and as such, may be requested to testify in utility rate hearings, legislative bodies, and/or other entities with respect to the audit conducted.
2 “Hot-tubbing” is when experts have been requested by the arbitrator/tribunal to testify concurrently.

Hired by counsel as a “non-testifying” consultant, on a confidential basis, Dr. Galloway and Mr. Dignum will work with counsel to review and critically analyze nearly complete expert report(s) and/or testimony to: insure that the expert's work product is technically sound and compellingly told, answer counsel's' questions and to resolve any concerns. This analysis, depending on the size and complexity of the dispute, analysis and report/testimony, is typically performed within one or two weeks and may be done by one or more of the reviewing experts, again depending on the subject matters to be reviewed, the complexities of the issues, and the perspectives counsel may wish to obtain. The confidential in-depth review is prepared for and shared with counsel in order to maintain applicable privileges. At counsel's' request, a meeting may be held with counsel and/or the testifying expert to discuss the findings face-to-face and to identify areas that may need strengthening. Counsel may also request a mock examination of the expert to test the reliability of the expert's opinion. This type of mock examination is not intended to replace an expert witness training program that may be provided by counsel or other organizations, such as, Communication Counsel of America that provide guidance and practice about presenting oral evidence. This mock examination can be tailored for the expected audience: opposing counsel, trial judge, jury, arbitration panel/tribunal, or another expert with whom the expert will be “hot-tubbing2”.

We do not change an expert's testimony or try to tell an expert what to say. Instead, our review is from the lens of the opposing expert and the decision-maker, and identifies areas where the expert's analysis and opinions can be strengthened. Through this service, counsel has the benefit of getting to see “what the other side would do with this”, before the expert report and/or testimony is completed.

If you are interested in learning more about how you can have your expert's evidence “tested” in a controlled environment at a point when any identified flaws can be detected and corrected, please do not hesitate to contact Dr. Galloway and/or Mr. Dignum through our U.S. Corporate Headquarters.