Claims for personal injury and property damage based upon allegations that the injury or damage was caused by exposure to mold have increased significantly and have resulted in substantial awards and settlements. In addition to the enormous litigation expense, mold claims have the potential to cost huge sums in the inspection, investigation, abatement, remedial procedures and repairs. The prosecution and defense of mold claims are extremely expert-intensive; it is necessary to prove the existence and the toxicity of the mold,  the responsible parties and the injury or damage caused by the exposure to mold. Counsel must consider carefully the appropriate construction, medical and scientific experts. Multiple experts are generally necessary. And it is imperative to coordinate the testimony of the various experts.

The most difficult hurdle for a claimant is proving a causal connection between the existence of mold and the claimant’s injury, and whether the claimant suffered from mold toxicity as a result of a breach of duty by a defendant. Because mold is ubiquitous, the issue is not whether there is mold present, but the amount and type of the mold and its toxicity. Although jurisdictions vary as to the standards of proving causation, ordinarily to prove causation in a mold bodily injury case, the plaintiff needs to show that an exposure to a significant level of mold to which the defendant’s faulty conduct or product contributed caused the plaintiff’s injury to reasonable degree of medical certainty. If the experts’ opinion is based upon insufficient evidence of a causal connection between toxic mold exposure and the plaintiff’s injury the testimony should be excluded.

For example, in Dee v. PCS Property Management, Inc. 2009 DAR 7757 the plaintiff presented a number of experts. A physician who specialized in medical toxicology, emergency medicine and forensic medicine was presented and his proposed testimony as to a causal connection between toxic mold exposure and cancer, brain damage, reproductive harm and future birth defects was excluded because the testimony lacked foundation and was basically speculation.

The plaintiff’s next expert was also a physician who specialized in clinical toxicology and treated patients who claimed to be sick as a result of toxic exposure. He intended to testify that the plaintiff suffered from toxic encephalopathy, asthma, immune deficiencies and various other maladies. Again the court found that his proffered testimony did not satisfy the foundational requirements.

The plaintiff also presented a clinical neuropsychologist. The trial court found that he  was qualified as an expert who could testify regarding the tests he administered, the scores on the tests and whether the scores fell within  a normal range. The court concluded that there was nothing in the expert’s background that would provide him with the expertise to opine that the plaintiff’s emotional problems  directly flowed from her exposure to mold.

Bob Clifford, author of Qualifying and Attacking Expert Witnesses, resides in Carmel, California. He serves as a consultant to law firms and as an arbitrator and mediator in insurance and litigation matters. He has been the senior partner of an Oakland, California law firm where he specialized in general litigation, including real property disputes, personal injury litigation, insurance matters, contract disputes, will contests and estate matters.

Following are some effective first lines:

This is a case about [e.g., a sign].

This may work well in a case in which you want to persuade the jury to ignore all the other complexities and distractions of the trial to focus on one prime cause.  It also helps to simply that cause.

The surgery was supposed to be routine.

Such a line acts like a teaser to capture the jurors’ attention, while it is also aimed to make the jurors feel.  Everyone experiences routine events, and thus, a line similar to this might remind jurors that the harmful event could happen to anyone.

The plaintiff had a very unlucky day.

This opening may be used by a defendant who needs to admit that bad things happened to the defendant, but it was nothing more than bad luck—not an event caused by the defendant.

The corporation said “trust me” when it invited Mary into its doors.

This opening line may work to draw the jury’s attention to the great trust customers place on businesses, and the corresponding obligations which businesses must meet.

Don’t let the finger pointing cause you to ignore the simple fact that [e.g., the plaintiff was not seriously hurt.]

If one of the parties acted in a disproportionately bad way—such as by driving drunk—the opposition may be attempting to inflame the jury against the drunk driver.  An opening such as this may help the jury to focus on some other facts, such as the other driver was also negligent or was not hurt very seriously.  The finger pointing also may become an issue when there is more than one defendant.  As a plaintiff’s lawyer, I am often fearful when there are multiple defendants pointing the fingers at each other that the jury may be left too confused to find anyone sufficiently negligent.

The fewer the years remaining, the more precious each one is.

At times, when an elderly person is severely hurt or killed, defendants will emphasize the limited number of years remaining in the plaintiff’s life expectancy in an effort to limit the damages.  Plaintiffs would want to turn that around to make those few years seem more precious.

The simplest explanations are often the best.

Such an opening line may help the jury to focus on a simple explanation that favors your client, over a far more complex explanation offered by the opposition.

Sometimes life is more painful than death.

Catastrophic injuries can be very difficult for a jury to measure.  For an injured person who has severe brain damage, lives in a persistent vegetative state, or who is so severely physically injured, such that death may have been more humane, then this statement may help the jurors to put the extent of the pain and suffering in perspective.

Beth D. Osowski represents civil litigants in many areas, including motor vehicle accidents, premises and product liability, medical and legal malpractice, contract and business litigation, construction disputes, will contests, real estate and landlord/tenant matters.  In 2007, she received what is believed to be the largest jury verdict in her county’s history for a premises liability case.

She has presented many legal seminars as well as authored dozens of outlines for continuing legal education courses.  Ms. Osowski ranked first in her University of North Dakota law school class all three years, and was awarded Moot Court Champion and Best Oralist.  Ms. Osowski is the author of Trial Preparation Tools, from which this article is excerpted.

Hopefully, as you have reviewed the file and considered the strengths and weaknesses of your case while performing this 120-day countdown to trial, you have been logging any thoughts you have as to possible themes on a Theme Log.  See Ch 1, File Review, Proof Rubric, Trial Logs and Checklists of Trial Preparation Tools.  Brainstorm additional choices.  Review this log and spend time debating each option.  Ask, what can I sell?  Review the Elements-of-Proof Rubric and confirm that the evidence you will present will fit within the confines of the chosen theme.  Recall what you have learned about the common beliefs within the community.

A Whole Lot of Themes to Choose From

• Responsibility.
• Civility.
• Truth.
• Justice.
• Greed.
• Defendant was running late.
• Quality of life.
• Good versus evil.
• Weak versus the powerful.
• Compassion.
• Consideration.
• The defendant experimented with lives.
• Honesty.
• Courage.
• Forgiveness.
• Caring.
• Faith.
• Poor versus rich.
• Determination.
• Patience.
• Gluttony.
• Stuff happens.
• Perseverance.
• Sacrifice.
• Obedience.
• Pride.
• Joy.
• Hope.
• Beauty.
• Respect.
• Humility.
• Order.
• Plaintiff will never be normal again.
• Service.
• Devotion.
• Loyalty.
• Expectation
• Love.
• Lust.
• Trustworthiness.
• No objective evidence.
• Generosity.
• Excellence.
• Diligence.
• Fraud.
• Sloth.
• Why are we here?
• Reliability.
• Honor.
• Normalcy.
• Anger.
• Plaintiff was a good neighbor.
• It was just an accident.
• Credibility.
• Integrity.
• Cooperation.
• Self-discipline.

Case-Specific Theme Ideas

Following are some suggestions of themes that may fit the unique needs of different types of cases:

Motor Vehicle Accident

ח:         Honesty (“∆ claimed it was only a slight tap.”)
Consideration (“∆ was running five minutes late.”)

∆:       Just an accident (“Sometimes accidents happen through no one’s fault.”)
Credibility (“ח’s claims just don’t add up.”)

Slip-and-Fall

ח:         Expectations (“Customers expect warnings for known hazards.”)
Diligence (“Diligent employers check the sidewalk after a freezing rain.”)

∆:        Self-discipline (“We all have to watch where we walk.”)
Pride:  (“∆ took great pride in his store.”)

L.I.S.T.

ח:         Responsibility (“For six months, the ∆ knew the brakes were bad.”)
Normalcy (“The collision was a life-changing experience.”)

∆:        Evidence (“There is no objective evidence of injury.”)
Greed (“Cars get bumped every day.”)

Medical Malpractice

ח:         Obedience (“ח carefully followed his doctor’s advice.”)
Experimentation (“∆ experimented with lives.”)

∆:        Caring (“∆ sat by ח’s bed for days.”)
Stuff happens (“The best medicine cannot cure every illness.”)

Products Liability

ח:         Reliability (“You don’t expect a new $500 bicycle to fall apart.”)
Justice (“ח’s family deserves justice.”)

∆:        Devotion (“∆ is devoted to their customers’ satisfaction.”)
Courage (“It takes courage to invent and market new products.”)

Corporate Defendants

ח:         Weak v. Powerful (“ח is but one individual.”)
Glutony (“∆ corporation demanded more.”)

∆:        Generosity (“Corporate ∆ gives back to the community.”)
Loyalty (“Corporate ∆ is loyal to customers and community.”)

Commercial Litigation

ח:         Determination (“ח was determined to make the deal work.”)
Sacrifice (“ח sacrificed everything.”)

∆:        Lust/desire (“ח wanted to get rick quick.”)
Order (“∆ must function according to the written rules.”)

Damages

ח:         Quality of life (“There are times when the quality of one’s life is so diminished that death would be more humane.”)
Good neighbor (“Before the collision, ח was everyone’s favorite neighbor.”)

∆:        Sloth (“ח had options to improve, but chose not to.”)
Respect (“No one disputes that the ח was injured.”)

Beth D. Osowski represents civil litigants in many areas, including motor vehicle accidents, premises and product liability, medical and legal malpractice, contract and business litigation, construction disputes, will contests, real estate and landlord/tenant matters.  In 2007, she received what is believed to be the largest jury verdict in her county’s history for a premises liability case.

She has presented many legal seminars as well as authored dozens of outlines for continuing legal education courses.  Ms. Osowski ranked first in her University of North Dakota law school class all three years, and was awarded Moot Court Champion and Best Oralist.  Ms. Osowski is the author of Trial Preparation Tools, from which this article is excerpted.

From time to time you will encounter a witness who claims not to remember anything about important events, details of conversations, or other matters at issue in the lawsuit. In some cases, the witness has a genuine lack of memory, or is sufficiently nervous about the prospect of testifying that he has drawn a blank about matters which normally would be remembered. In others, unfortunately, the witness simply chooses not to remember or has been improperly coached to give this response.

A common reaction to the forgetful witness is to become upset or to truncate your examination because it appears to be futile. Do not give in to these urges. In most cases, the forgetful witness presents an opportunity rather than a liability. If the witness is nervous, you may or may not want to take steps to calm him and to help him recover his memory. If he is dishonest, you will want to be sure that his lack of memory is clearly established on the record. In either case, your tactics for dealing with a forgetful witness will vary greatly depending upon a combination of factors, including your estimation of the integrity of the witness, your need for the witness to give testimony on the subject, and your desire to prohibit the witness from later giving testimony on the subject based upon an ­alleged recovery of memory.

If the witness who professes a lack of memory appears to be nervous with respect to the deposition process, you may want to try to help him relax. If your goal is to help the witness recover his memory, which is not always the case, start by trying to make the witness comfortable. Explain how the deposition process works and assure the witness that you are only interested in learning the truth. Emphasize that depositions are not like tests and that he must only tell what he knows and remembers. Begin with easy questions about the witness’s background or employment until he becomes accustomed to answering questions. Use a friendly tone and avoid adversarial questions until he is relaxed, comfortable, and responding to questions. Once the witness feels he is in control of the situation or at least can respond to your questions, his nervousness may diminish.

If nervousness does not appear to be the problem, and you believe the witness has simply forgotten about past events, consider refreshing his memory by showing him relevant documents. In the alternative, ask him whether he knows of any documents or records which might help him recall. He may mention a document which you have not yet seen or possibly one which you have and can place before him. You will sometimes learn of important evidence through this type of question. It might also provide a basis for seeking discovery of written statements given to his attorney or fact summaries prepared by his attorney. Ask specific questions, as they are more likely to jog his memory, or at least will commit him to a no knowledge position.

Another option is to ask the witness to tell you who might know the answer if he doesn’t. If a name is given, follow up and find out why the witness believes that this individual might know. If the witness acknowledges that your client or another friendly witness was in a position to know, establish that this witness could not presently contradict your client’s testimony, or that of another, whatever it might be. For example, where attendance at a meeting is in issue:

Q.   If my client were to testify that you were present at the meeting on Sunday, July 23, 20__, could you dispute that testimony based upon your present recollection?

A.   No.

If the witness equivocates, follow up:

A.   I don’t really remember. Maybe I could.

Q.   I’m asking for your best recollection at this moment. As we sit here today, can you recall whether you were present at that meeting?

A.   No.

Q.   Then based on your present memory you could not contradict my client if he were to testify that you were there, could you?

A.   No.

One purpose of this line of questioning is to neutralize the witness and eliminate him, as much as possible, from being a factor at trial. If it prompts him to suddenly remember, at least you have an opportunity to hear his testimony in deposition rather than at trial.

If you believe that the witness is being dishonest, or is deliberately minimizing his memory, your only option may be to neutralize him as a witness by showing that he had no recollection on any of the relevant points at the time his deposition was taken. If you have a broad range of topics to cover, you will have to call upon all of the patience and perseverance you can muster. Even though the witness repeatedly answers, “I don’t remember,” continue asking your questions until you have covered every aspect of the subject area. If you have asked a specific question on the issue in deposition, it will be difficult for the witness to credibly regain his memory at trial. At the least, you will have good material for impeachment.

When dealing with a forgetful witness, you may have to employ all of the techniques at your disposal, whether your purpose is to jog the witness’s memory or pin him down for trial. The reason is that your impeachment at trial may be more effective if you can show the jury that you made every effort to help the witness remember during his deposition. For example, consider a scenario where the witness admits being at a meeting but claims he doesn’t recall what was said:

Q.   (After establishing that the meeting took place and that the witness recalls that Ms. Davidson and Mr. Reilly also attended.) Did Mr. Reilly say anything about pricing schedules at the meeting you attended on July 23, 20__?

A.   I don’t remember.

Q.   Do you remember Mr. Reilly saying anything about pricing schedules at the meeting?

A.   No.

Q.   Do you recall that the subject was discussed by anyone?

A.   No, I don’t recall.

Q.   I would like you to take a minute and think. Can you recall anything that was discussed at that meeting? And I mean the meeting of July 23, 20__.

A.   No, not really.

Q.   Are there any documents which you could look at to help refresh your memory?

A.   Not that I can think of.

Q.   Did you or anyone else, to your knowledge, take any notes during or after the meeting?

A.   Not that I know of.

Q.   If we were to stop for a minute, do you think you might be able to remember better?

A.   No, not really.

Q.   So you can’t say one way or the other whether pricing schedules were discussed at the meeting.

A.   No.

Q.   If Ms. Davidson were to testify that pricing schedules were discussed, could you dispute her testimony?

A.   No.

Q.   And if Mr. Reilly were to testify that pricing schedules were discussed, could you dispute his testimony?

A.   No.

Q.   Isn’t it true that the three of you compared prices for your paper products and discussed setting prices for the coming year?

A.   I don’t recall doing that.

Q.   Based on your present recollection, can you deny that such a discussion occurred?

This type of questioning can go on as long as it takes you to pin down the witness’s lack of recall. If the “I don’t recall” response is highly favorable to your case, you should consider whether further inquiry might jog the witness’s memory and result in unfavorable testimony. If “I don’t recall” is exactly the answer you want, consider leaving it alone.

Daniel P. Dain, author of How to Prepare for, Take & Use a Deposition is a founder and the Managing Partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner in Boston, Massachusetts. Mr. Dain is a trial lawyer focusing his practice on representing real estate developers and property owners in litigation and administrative matters. He also maintains a commercial litigation practice and has represented clients in insurance coverage disputes. Mr. Dain was formerly Senior Counsel for Real Estate and Land Use Litigation at Goodwin Procter, LLP. Mr. Dain is also a former Special Assistant District Attorney in Middlesex County, Massachusetts.

It is common knowledge that we live in a visual society: people comprehend and retain what they see rather than simply what they hear. Consequently, demonstrative evidence plays a critical part in conveying an expert’s opinion. However, counsel must consider carefully the demonstrative evidence that is to be presented. Make certain that charts are large enough to be seen by all jurors, that the material is not too complicated or confusing, that diagrams clearly depict what the expert says they depict, that graphs are accurate, and that the material is displayed long enough for the jury to comprehend what is being shown.

Experts frequently testify about the operation of machinery which involves comprehension by the jury of the spatial relationship and the movements of various parts. If the workings of a complicated mechanism are significant, it is simpler for the jury to comprehend how the machine operates by watching a model operate rather than relying upon an expert’s oral description. Without a model, an expert’s explanation of how a machine operates can be time- consuming and still not be fully understood. In automobile case, the bank or grade of a roadway may be significant and a three-dimensional model showing vertical as well as horizontal dimensions, indicating lines of sights and obstruction, may be vital to an accident reconstruction expert’s testimony.

In addition to using demonstrative evidence as an adjunct to an expert’s testimony to illustrate a particular point, a model may be used by an expert to prove an element of the case. For example, a model used in a water-contamination case to establish that the defendant’s conduct caused the contamination of the water supply of a nearby area may be proved by using a model based upon the same information such as water flow, topography, and porosity.

Bob Clifford, author of Qualifying and Attacking Expert Witnesses, resides in Carmel, California. He serves as a consultant to law firms and as an arbitrator and mediator in insurance and litigation matters. He has been the senior partner of an Oakland, California law firm where he specialized in general litigation, including real property disputes, personal injury litigation, insurance matters, contract disputes, will contests and estate matters.

Some witnesses will intentionally try to evade, or argue with you about, each important question. More than others, these witnesses require your patience and persistence. When the witness gives an evasive answer to your question, respond: “I do not believe you answered my question. Mr. Reporter, would you please read back my last question.” If the deponent persists in his prior answer, respond: “Let me try again. My question is ______________. Would you please answer my question.”

Make sure that your questions are narrow, simple and clear; if the witness has a legitimate basis to evade your question, opposing counsel will object when you keep repeating it. If in doubt, pause and think of a way to rephrase your question so that the witness is required to answer it fairly. To repeat, patience and persistence is the key to success; narrow specific questions will help you reach that goal.

Some witnesses may unintentionally respond in a manner that is evasive or does not suit your purposes. For example:

Q. Did you call Mr. Jones on July 29 to discuss the deal?

A. I was considering the best course of action to take and discussed it with Tom, Bill and Joe. After considering we decided there were multiple steps. Later that day I placed calls to Mr. Thompson, Mr. Jones and Mr. Smith.

In this case, the witness may be trying too hard to help you by giving you the whole story. In response, you may choose to let the witness talk, in the hope of learning something useful. Ultimately, however, your need to control the witness and may require a different approach. One way to regain control of the situation is to respond:

Q. Mr. Jones, my question was, “On July 29 did you contact Mr. Jones to discuss the deal?” Can you answer that question yes or no?
If he says yes, ask him to do so. If he answers no, ask him why he cannot answer yes or no, and follow up.

Do not give up on this kind of witness. Continue to ask the same or a revised question calling for the same information. Be sure that your questions are narrow and call for short and obvious answers. If the witness continues to answer in a nonresponsive manner, move to strike the answer as being nonresponsive. Once the witness finally realizes he can’t get away with his evasions and that he is needlessly prolonging the deposition, he will usually begin to respond properly. If he persists in being evasive or nonresponsive, your last option is to warn the witness that he must answer your questions in accordance with the rules of court and advise him that if he persists, you will have no choice but to ask the judge to order him to answer and assess costs. If the witness still refuses to answer responsively, consider recessing the deposition and moving for an order compelling responses. Try to end your examination on a particularly egregious evasion so that you can show it to the judge.

An argumentative witness will often try to anticipate where you are going with each question and defeat your objective. He will quibble with small details and try to evade when he cannot quibble. He should be treated like the evasive witness. Repeat your question or modify it to eliminate the objectionable detail. If he claims he doesn’t understand your terms, either define them or ask him to define them and then repeat the question. Eventually, he will break down and answer. If necessary, use the pinning techniques to make sure you have answers that can be used to impeach at trial.

Some argumentative witnesses will try to avoid answering yes to questions, even though they should be admitted. One tactic is to phrase your questions so that the desired answer is no. By doing so, you may lead him into some valuable admissions. For example, if you want to establish that the deponent contacted Mr. Smith before calling Mr. Jones, you could ask the question in at least two ways:

Q. Isn’t it true that you called Mr. Smith before you called Mr. Jones?

As an alternative, you could ask it in this way:

Q. Isn’t it true that you called Mr. Jones before you called Mr. Smith?

In some cases, the conduct of an argumentative witness might extend beyond refusal to answer questions or quibbling with their form, and enter into insulting and hostile behavior. For instance, in GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008), the defendant CEO deponent used vulgar remarks, insults, and evasive answers for almost 75% of the deposition. Upon a motion to compel deposition testimony and for the imposition of sanctions, the court found this behavior reprehensible and awarded almost $30,000 in sanctions to the plaintiff. Of further note, the deponent’s lawyer was jointly and severally sanctioned for not restraining the deponent’s actions. The attorney’s silence equated to a tacit endorsement and ratification of deponent’s behavior. As the court stated:

It is true that an attorney can be blindsided by a recalcitrant client who engages in unexpected sanctionable conduct at a deposition. An attorney faced with such a client cannot, however, simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down.

Id. at 195.

If you encounter such behavior, maintain your professionalism and continue to respectfully seek answers to your questions. Use the above tactics of rephrasing and definition to ensure the deponent can understand and easily answer the question. Finally, consider terminating the deposition if the deponent is obstructive, rude or profane and move to compel answers and, where appropriate, for the imposition of sanctions.

Daniel P. Dain, author of How to Prepare for, Take & Use a Deposition is a founder and the Managing Partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner in Boston, Massachusetts. Mr. Dain is a trial lawyer focusing his practice on representing real estate developers and property owners in litigation and administrative matters. He also maintains a commercial litigation practice and has represented clients in insurance coverage disputes. Mr. Dain was formerly Senior Counsel for Real Estate and Land Use Litigation at Goodwin Procter, LLP. Mr. Dain is also a former Special Assistant District Attorney in Middlesex County, Massachusetts.

Make certain the medical expert’s testimony and conclusions as to causation are not rejected because they are deemed to be speculative, conjectural, or ambiguous. In most jurisdictions, the plaintiff must establish with “a degree of medical certainty” that the act of the defendant caused the injury complained of. In many personal injury actions, the requirement is not a difficult hurdle. For example, in an automobile accident or a slip and fall claim, it is a simple matter to establish that the plaintiff’s broken leg is the result of the collision or the fall. However, when dealing with environmental caused injuries or diseases of a type that may infect society at random, often with no known or specific origin, proving causation between the defendant’s conduct and the injury may be very difficult and the success of the case may hinge on the ability of the medical expert to establish causation.

The testimony of an expert that an incident was probably caused by the defendant’s conduct may be considered speculative and conjectural, and consequently falls short of meeting the standard required to prove proximate cause. The medical expert may not be aware of the necessity to frame his or her response to the court imposed requirements needed to establish causation. For example, the expert may not appreciate the difference between testimony that the injury was “probably caused by the defendant’s conduct” and “the injury was caused by the defendant with reasonable medical certainty.” Counsel should take time to discuss the sometimes subtle distinctions involved in the wording of his or her testimony. Unless the distinctions are explained to the expert the expert might express an opinion that may be insufficient to prove causation.

Bob Clifford, author of Qualifying and Attacking Expert Witnesses, resides in Carmel, California. He serves as a consultant to law firms and as an arbitrator and mediator in insurance and litigation matters. He has been the senior partner of an Oakland, California law firm where he specialized in general litigation, including real property disputes, personal injury litigation, insurance matters, contract disputes, will contests and estate matters.

In large complex construction projects, a “critical path” method is frequently employed. Essentially, the “critical path” method is an efficient way of organizing and scheduling a complex project which consist of numerous interrelated separate small projects. Each subcontractor-project is identified and classified as to the duration and precedence of the work (e.g. one could not carpet an area until the flooring is down and the flooring cannot be completed until the underlying electrical and telephone conduits are installed). The data is then analyzed by construction experts, usually by computer, to determine the most efficient schedule for the entire project. Although many subcontractor-projects  may be performed at any time within a given period without any effect on the completion of the entire project, some items of the project have no leeway and must be completed on schedule. A delay by a contractor or material supplier can prove critical to the success of the project. The items of work are on the critical path and a delay or acceleration of work will affect the entire project. See Haney v. United States (Ct Cl 1982) 676 F. 2d 584, 595.

Experts familiar with large scale construction projects and with experience in the diverse crafts involved in the project are essential to determine the reasonable critical path of the project. In the event a delay in the project should occur, experts are required to estimate the number of days of delay that are attributable to the various subcontractors. Experts will consider the categories of delay such as the failure to comply with government regulations and inspections, the failure of a contractor to fully man the project with competent workers, the failure of a contractor to retain skilled subcontractors, the failure to assure the timely delivery of necessary material.

Experts are necessary to ascertain, compute and opine as to the extent of the failures and the extent of the delay and the effect upon the critical path that was caused by parties other than the contractor. For example, the owner may have required unreasonable change orders and may have failed to provide needed material.

Bob Clifford, author of Qualifying and Attacking Expert Witnesses, resides in Carmel, California. He serves as a consultant to law firms and as an arbitrator and mediator in insurance and litigation matters. He has been the senior partner of an Oakland, California law firm where he specialized in general litigation, including real property disputes, personal injury litigation, insurance matters, contract disputes, will contests and estate matters.