Construction disputes are about more than contracts,
schedules, change orders, and emails. As Cathy described in her prior post
about the TRA
groundbreaking, these disputes also turn on the people who built the
project. The project manager remembers the schedule. The superintendent
remembers what happened in the field. The architect remembers the design
discussions. And the owner's representative remembers the decisions and why
they were made.
When a dispute arises, these people become the most
important witnesses in the case.
A witness may have spent years managing a project but never
testified under oath. That makes witness preparation critical in construction
cases. By the time a deposition occurs, the witness must reconstruct events
from hundreds of project records, most of which were created years before
testimony.
Effective preparation is not about teaching a witness what
to say. The goal is to help the witness understand the process, remember what
happened, answer questions accurately, and stay credible when the questions get
hard.
Start by Listening
The first step is often the simplest: let the witness tell
you what happened. Rather than walking through a lawyer-created timeline, start
with an open-ended question: “Tell me what happened.” Then listen.
Often the documents don’t tell the full story. A project
manager may remember a conversation about a delay that never made it into the
meeting minutes. A superintendent may remember a field condition never captured
in an RFI. They lived the project. They know the facts best.
Identify what the witness knows firsthand, what they learned
from others, what they remember clearly, and what they need help remembering.
The goal is not to create a perfect version of the project’s
history. The goal is to understand the full story so you can shape your
strategy around the actual facts and avoid hearing an important detail for the
first time during testimony.
Remember That the Witness May Feel Like They Are on Trial
Construction professionals take ownership of their projects.
They are responsible for getting things built, keeping schedules on track,
managing subcontractors, responding to problems, and making decisions under
pressure.
When a project ends up in a dispute, a witness may hear the
questions as criticism. Did I miss
something? Did I make the wrong call? Did I drop the ball?
Those concerns can make a witness defensive, overly eager to
explain, or reluctant to acknowledge a mistake. Part of preparation is helping
the witness understand the difference between being asked about a project
problem and being accused of causing it.
A useful question during preparation can be: “What are
you most worried they are going to ask you?” The answer may have little to
do with the legal issues you think matter most. But it can reveal what is
making the witness anxious, and once you understand that concern, you can
address it.
Practice the Questions You Do Not Want Asked
The best preparation is not limited to reviewing the good
facts. Ask: What are the five questions
we least want opposing counsel to ask?
Maybe the contractor’s project manager approved a schedule
that later proved inaccurate. Maybe the owner’s notice of default did not
comply with the contract requirements. Maybe an email contains language that
looks much worse out of context.
Address those issues before the witness sits for a
deposition. For each difficult question, understand:
·
The truthful answer
·
The documents that may be used to challenge it
·
Any earlier testimony on the same topic
·
How the witness is likely to react under
pressure
Then go over that with your witness. Give them ownership in
the process and insight into the bigger picture.
And practice the question the way it is likely to be asked.
If the witness is worried about being blamed for a delay, do not simply ask, “Why
was there a delay?” Ask the harder version they are more likely to hear
from opposing counsel: “Isn't the reason the project was delayed that you
failed to properly manage the schedule?”
Preparation should minimize surprises. Witnesses perform
better when they have thought about the hard questions ahead of time and
practiced how to answer them.
Documents Can Refresh Memory, But They Can Also Create Problems
Construction cases are document-heavy. Review the key
documents with each witness. Do not rely on memory alone.
Before showing a witness a document, understand what it is,
whether it has been produced, and whether it is protected by privilege or other
legal protections.
A practical starting point: have the witness re-read their
own emails, daily reports, and any documents they authored or signed before the
preparation session. Those are the documents they are most likely to be asked
about, and reviewing them in advance helps recall the context behind the words
on the page.
When reviewing documents during preparation, watch for these
common issues:
The witness remembers
events differently than the documents reflect. That is fine, but it needs
to be addressed. If the testimony differs from a document, understand why and
prepare the witness to explain the difference clearly.
An email or letter
contains language that sounds worse than it is. Construction projects move
fast. People write in frustration, shorthand, or haste. What was dashed off in
the moment can look damaging when read years later in a conference room. The
witness should see those documents before the deposition rather than for the
first time when opposing counsel slides them across the table.
Too many documents
blur actual memory. Be careful about volume. Focus on the documents that
matter most: the ones that tell the story, the ones that create risk, and the
ones the witness is most likely to be asked about.
Preparation Is Part of the Project
Construction professionals prepare for every phase of a
project. Testimony should be no different. A well-prepared witness understands
the process, has reviewed the key documents, has thought through the difficult
questions, and can walk into the room confident there will be very few
surprises.
Debrán O’Neil is a litigation partner in Carrington, Coleman, Sloman & Blumenthal, L.L.P.’s construction practice group in Dallas, Texas. She primarily represents manufacturers and public and private owners and developers in connection with the construction of large commercial and infrastructure projects throughout Texas. She can be reached at doneil@ccsb.com.
