QDR has proven international experience in construction claims damages quantification. We apply mature and proven methodologies to produce objective and well-supported conclusions, which we present in negotiation, mediation, arbitration, and litigation proceedings.
Claims processes and expert witness processes are very similar. Both of them:
- Quantify damages, seek to support excusable / compensable deviations from contracts, determine the causal relationship between law and damage - impartially observing the difficulties in its execution - and the mechanisms to sufficiently assess the impacts caused.
- Are dependent on each other: The Claim involves an expertise witness - each time it must be determined through an expert witness report, the claimed value - and the Demand is based on a Claim for damages, which the party will quantify via an expert witness.
When claims cannot be prevented before or during contract execution they must be resolved through negotiation, mediation, arbitration, or litigation. QDR’s analytical and expert witness services have been tested and proven in these forums.
Our senior personnel apply best practices to analyze claims related to delay, lost productivity, design changes, and contract scope disputes. They have participated in the development and presentation of best practices and standards with organizations including AACE International, the American Society of Civil Engineers, the Mexican Society of Engineering Economics and Costs and the Society of Construction Law.
QDR has a unique combination of proven international claims experience, deep construction management experience in Latin America, and a particular understanding of the analysis and presentation of construction claims in civil law forums. We advise our clients on how best to prepare or defend claims, and we provide detailed and compelling expert testimony to support our analyses.
The credibility of our experts and the quality of our expert reports are our hallmarks.
CLAIMS AND EXPERT WITNESS
Our focus is on construction Claims contracts and construction Expert Witness for commercial arbitrations contracts, in projects in the mining, energy, oil and infrastructure industry. Regardless of the size and complexity of the contract, it is essential for any analysis, to rely firmly on a thorough review of the facts, evidenced primarily by updated and complete records.
The key to the successful delivery of reliable and objective advice in the context of the services offered by QDR, is the clear and firm knowledge and understanding of both theoretical and practical aspects of the contractual processes at the center of the dispute, as well as external factors that may be relevant for the analysis. Once that is established, a solid understanding of all the facts relevant to the analysis of deviations is crucial, both in the Scope, Schedule, and Costs, expressing those facts in a technical report in a clear, forceful and concise manner.
Importance of defining the scope of expertise witness report
It is essential to understand very well and fully, the scope of the assignment: important the art of the client to know how to narrate factual, well-founded and objective facts. Once the scope and objectives of the Consultancy have been fully collected, QDR creates and refines very well "the ad-hoc model", its associated methodology, the deliverables and documents required to address the assignment.
Identify and justify contract gaps, which could impact costs / time, for which some mechanisms are applied such as: Baselines (Documentary, Bidding / Execution, Contract, Organization and Schedule), Recommended Practices ad-hoc of the AACE, Position of the Client, Expert Judgment.
Quantify the costs of the materials that impact costs / time, for which techniques, tools or methodologies such as: Quantity Measurement, Cost Estimation, Legal Procedures according to Contract, Programming Analysis, Expert Judgment are applied.
The Expert Witness Credibility
QDR works together with the Lawyer and the Party, for the Court: “My duty to give the best opinion, is a duty towards the Court”
The first objective of the expert witness is to be credible in front of the court. The credibility is worked from the moment of the definition of the work scope: "The best expert witness is not the one who tells you what the party wants to hear, but the one who convinces the court."
Early expectations management: not accepting works in which there is already a prior calculation of the party, in which we focus on assessing how reasonable the party calculation is.
The expert witness has to defend his independence and own his conclusions: critical aspect of credibility.
In international arbitration practice, there is talk - with distrust - of overly biased experts, such as "hired guns”.
The Quality of the Expert Witness Report
According to QDR, it is based on a) rigorous work, b) on the experience on what will be pronounced), c) on the application of general acceptance methodologies that can be contrasted and valued by a contradictory expert witness or by the court (an expert witness report of the party will be subject to contradiction), d) in the transparency and reproducibility in the calculation bases that it has used in application of that methodology, so that it may be subject to contradiction and -a when assessing the opinion or giving an alternative calculation-, the contradictory expert witness will have tools to reproduce in our words, that calculation, and give an alternative vision, e) the reputation and credibility of the experts witness and f) in not accepting all hypothesis, or all the calculations that are offered: not to defend “suicidal” approaches, because the pressure of the part is inconducent.
Once the lawyer has decided who the expert witness who believes is going to meet his expectations, he has the obligation to work with the experts witness hand in hand, but respecting his independence: the expert witness must defend his independence, because that will give him credibility and It will help for the Arbitrator to make conviction that report designated by the party.
No Demand is equal to another: no Expertise Witness Report is equal to another
Since, like each demand, expertise witness report or claim, they are unique, singular and different, the possibility that some is equal to another, is practically impossible, then the obligation to show the lawyers and clients, that the expert witness collected the scope and objectives of the expertise witness report perfectly well, by then fine-tuning the model, methodology, deliverables and documents that are required to develop the assignment: this MAKES a great difference in the strategy to address the expert witness report.
Balance between the need for control of the lawyer yearns for the appointment of the expert witness, with the fact that expert witness must start from objective bases in which he feels that he is doing a job he can defend.
Appoint an expert witness to show sufficient understanding of the assignment and forcefulness in his technical offer presentation, which will meet the expectations of the lawyer and who understands that the lawyer does not work for the court: he works for the benefit of his client.
Set the starting point well: the lawyer's art of knowing how to narrate things and tell them in a way that benefits the party they are defending, so that the expert witness understands the scope of the expert witness report and what are the expectations of the lawyer.
Full access to information: availability of formal, managed, traceable and searchable information.
Constant and permanent joint work lawyer-party-experts witness, respecting the independence of the expert witness: start-up meeting, alignment meeting, and clarification meetings, as needed.
The selection and early involvement of the Expert Witness and his full access to information
Initial contact to assess the strength of the matter: full access to documentation
Do not "rigidity" the scope of the expert witness report, for reasons of rigor, methodology and credibility.