Twenty-Thousand Gallons versus Nine Ducks—Effective Communication in the Field, in Reports, and as an Expert Witness Aaron Nelson, RBEC, RRC, RWC, REWC, RRO Roofing Technical Services | Stanwood, WA Aaron@roofingtechnical.com IIBEC International Convention & Trade Show | SeptembeBEr 15-20, 2021 N Nelson | 79 Aaron Nelson, RBEC, RRC, RWC, REWC, RRO Roofing Technical Services | Stanwood, WA Aaron Nelson, RBEC, RRC, RWC, REWC, RRO, is the president of Roofing Technical Services (RTS). He started in the roofing industry just after graduating from high school by working as a sheet metal fabricator/installer. After joining the office of a commercial roofing contractor in Seattle, Nelson worked as an estimator/project manager for 10 years. In 2004, he moved to the consulting side of roofing and started working on projects across the United States. Nelson and the team at RTS provide consulting and quality assurance observations for clients on projects throughout the nation, working with various code and climate conditions that make each project unique. 80 | Nelson II BEC International Convention & Trade Show | September 15-20, 2021 ABSTRACT SPEAKER Effective communication—both written and verbal—is essential in our industry. Our written reports are often a large product of our services, and many times, they are the only deliverable our clients see from us. Reports must be clear, articulate, and accurate regarding the facts reported. Standards, such as the IIBEC Manual of Practice and ASTM D7186, provide guidelines for accurate reporting. We will review formatting, creative and liberal use of adverbs, providing facts, and maintaining third-party impartiality. While on project sites, contractors, architects, engineers, and owners use different vernaculars and methods of communication to effectively relate to one another. We will discuss real-life situations where communication in the field is tailored to the parties engaged in the conversation, while consistent information is still relayed to all parties. IIBEC members acting as expert witnesses need to clearly communicate as they discuss litigious items with attorneys, clients, juries, and judges. Depositions and testimony can be stressful as opposing members attempt to discredit and undermine experts’ findings, and each side advocates for their clients. Experts must remain impartial, confident in their findings, and composed, regardless of the accusations. Effective verbal and written communication as we work with clients, contractors, architects, and litigators requires us to understand the perspective of our audience. Failure to clearly present the facts, either verbally or in written form, and ensure that the recipient is able to understand the information behind what is presented can result in issues being easily avoided. Consider the story of the two-duck versus the nine-duck pond: In a meeting with an architect and a contractor, an owner inquired about the size of a pond being built for him. The architect indicated that the pond would hold 20,000 gallons of water with waterfalls cascading into and out of the pond, utilizing a circulation method that would be concealed from view. The owner asked simply if the pond were a two-duck or a nine-duck pond. The contractor answered by discussing the method of construction using track hoes to dig the pond. The removed soil would be used to create a berm around the pond. As the discussions continued regarding size and shape and method of creating the pond, the owner again asked if the pond were a two-duck or a nineduck pond. Again, the architect and contractor attempted to explain about volume and depth and flow. When the owner asked for the third time if the pond were a two-duck or a nineduck pond, his representative informed him that it was a nine-duck pond. The owner was pleased, and the meeting moved forward. A simple inquiry from the owner became confusing because each professional answered from their own perspective and within their respective areas of expertise. The architect answered correctly with “design intent,” focusing on the form and function of the project, and the contractor replied correctly with “means and methods,” addressing the constructability procedures. While their answers were correct, neither considered the owner’s perspective, “end use,” in their responses so they failed to provide the information the owner wanted. As we communicate with our clients, and work with contractors and architects, we often need to be experts in communication to ensure that we are clearly stating the facts, and that we are providing the end user with the desired information in an understandable manner. Often a project will begin with a field visit. The project may be something small, such as a single-family residence where we may be interacting with a homeowner, or it may be a large building where we work with design and construction teams. Field visits often include interactions with others, and the communication will provide additional insight into the project. If we learn how the design intent was constructed in the field, by those who completed the tasks, we will have greater understanding of the project, and more information that can be documented. Project information will often be documented through field reports such as quality assurance (QA) or condition assessment reports. These reports capture information from the visits that provides snapshots in time of the project, and they may document items that seem insignificant at the time of construction. Projects occasionally have unresolved issues leading to litigation. Litigation may include hiring of attorneys for both sides, field visits, mediation, depositions, and expert witness testimony at trial. Each of these general categories: “in the field,” “in reports,” and “as an expert witness,” requires specific communication methods so that the end user has the information they need. IN THE FIELD While standing on a project site, we may find ourselves gathered with owners, architects, and contractors, discussing a particular detail, such as a base flashing at a mechanical curb. Whereas the owner may want to hear that the roofing assembly extends from the roof to the top of the curb, the architect may want to know how much additional thickness the assembly adds to the overall dimension of the curb to ensure that the mechanical equipment will rest atop the curb correctly. The contractor, however, may want to understand how the base sheet is to be installed, if a cant at the base of the curb is to be provided, how high the field membrane should extend above the cant, how far the interply sheet should extend beyond the toe of the cant, and so on. The particular nuances of the installation of the assembly, while important to the owner and architect, may not need to be discussed at that exact moment. While the owner and architect are looking at the big picture, the contractor is looking at the distinctions of the specific installation methods. II BEC International Convention & Trade Show | September 15-20, 2021 N elson | 81 Twenty-Thousand Gallons versus Nine Ducks—Effective Communication in the Field, in Reports, and as an Expert Witness If we learn how the design intent was constructed in the field, by those who completed the tasks, we will have greater understanding of the project, and more information that can be documented. To ensure mutual understanding between the parties communicating, it is important to understand particular vernacular and installation methods for the regional location in which you are working. For example, asphalt roof cement is often used in asphalt-based roofing systems. Depending on the location, the product may be referred to as asphalt roof cement, plastic cement, mastic, or bull. Knowing the particular lingo of the region is important so that you can be sure that the correct products are used in accordance with the contract documents. In addition, you should understand regional installation methods applicable to your project. These methods are sometimes overlooked during the bidding, contract execution, submittal or pre-bid-meeting portions of the project progression, but they are significant when installers are executing the work. For example, while performing a punch-list inspection of a project, a sheet-metal coping detail was examined with the coping installers. The architect’s plans were examined, along with the approved submittals and the installed copings. It was clear that the fabrication style and installation method varied from the contract documents. The installers explained that this was the way that they always fabricated and installed copings in the region, and that they believed the regional installation method generally followed the “guidelines” of the contract documents. However, the copings installed using the regional method did not met the contract requirements and the architect did not accept the work. Had the contractor discussed the difference between the contract documents and the planned means and methods, the issues could have been resolved prior to fabrication. Regional differences greatly impact a contractor’s knowledge and skill levels, and may impact their performance. For example, a contractor working in northern Canada would likely have greater familiarity and expertise installing vapor barriers than a contractor working in southern Florida. Regional nuance and vernacular without clarity and understanding by all parties could be costly! In addition to understanding the correct information to convey to each respective party, understanding the contractual responsibilities and proper channels (chain-of-command) for communication is equally important. In some cases, the owner of a project engage consultants as well as a contractor (this may be a general contractor who hires subcontractors) and an architect/engineer. On projects where the consultant is not the architect or engineer of record, the owner may lean on the consultant to provide insight for proper contract administration; however, there is generally no legal standing for the consultant to direct any work, including stopping or starting crews, or making changes to contract documents. Therefore, when there are issues on the project site, consultants should refer to the contract documents for clarity, as these documents dictate the contractor’s requirements. Pointing out any variance between the actual installation and the contract document in a professional manner will provide an opportunity to make necessary corrections. When such reminders are not effective in the field, it may be necessary to move from the site to the contractor’s office, where conversations can include the contractor’s project manager or owner. Occasionally, these reminders are not heeded by the contractor in the field or in the office. In that event, the next step would be discussions with the project owner to advise them of the situation. The project owner has the contractual authority to provide direction to the contractor. Understanding this legal “line of authority” is important to ensure that, as consultants, we don’t cross legal lines thereby potentially confusing the project and opening ourselves to litigation. For example, a contractor submitted a change order request based on changes made by the consultant in the field. Discussions ensued, ultimately resulting in a denial of the request because the consultant did not have authority to make changes to the work. This situation created animosity within the project team due to poor communication between the consultant and the installers, with costly results such as completion of work in excess of the contract documents. In contrast, there are times when the consultant may be contracted with the architect or engineer of record on a project. This contractual arrangement may allow for the consultant to have direction over the work if they have contractual responsibility for contract administration. Therefore, it’s vital that we know and understand the contractual roles that we have in the completion of a project. Similarly, it is important to recognize the authority of those you are working with and be respectful of that authority. If a roofing mechanic is making a mistake on the roof, we should alert the roofing foreperson, and allow them to make the correction with their roofing mechanic. This shows both the roofing mechanic and the foreperson that we are cognizant of the “chain of command” and reinforces the proper delegation of responsibility among the contractor’s work crew and the overall project from the roofing mechanic to the foreperson, to the project manager, to the contractor, to the owner. Although communication between the consultant and the field crew is certainly subject to the legal lines previously discussed, that does not mean interaction is frowned upon. The foreperson may need help understanding specific details or language in the contract documents. In such cases, we can provide valuable clarity without directing the work. Furthermore, as installation methods may differ from the consultant’s experience, a dialogue between the installer and the consultant can be helpful regarding why a particular method is being used. This type of field communication will not only increase the consultant’s knowledge but can also allay suspicions that the installation may differ from contract documents. The free flow of information between the contractor and consultant helps ensure that there are not misunderstandings in the field that could be harmful to the outcome of the project. My first exposure to the importance of effective field communication occurred early in my career. On a roofing project, the roofing foreman asked me about how I wanted a drain sump formed. I told him how I wanted it completed, and he responded with an odd look and an uncomfortable indication of understanding. I went to look at another part of the roof while work began on the sump. The foreman came to me again and questioned my response regarding the sump and we discussed it further. I realized that my previous description was wrong. I apologized and informed him that I had misspoken and provided an incorrect description. He was relieved and informed me that he knew it was incorrect and had waited to begin work until he could speak with me again. The confidence on the part of the foreman to return for clarification of something that he knew was wrong provided me assurance that the foreman wanted to install the assembly correctly. From this interaction, I learned that it is important to realize that our industry has many experts. The foreman in this example is an expert in the installation of that roofing assembly. His knowledge and expertise were essential in the completion of a successful project. By communicating effectively with each other, we were able to overcome differences in ideas and come to a successful resolution. Site visits with a mentor can be learning 82 | Nelson IIiiBEC International Convention & Trade Show | September 15-20, 2021 opportunities. I recall one of my first preconstruction meetings held onsite, wherein a manufacturer’s representative and the site superintendent were shouting at each other and pointing fingers at each other aggressively for 10 to 15 minutes. I truly believed that a brawl was going to break out in a room of 20 or so people. I recall turning to one of my coworkers who had accompanied me to the meeting and asking if all preconstruction meetings were like this. That experienced coworker was able to explain to me the situation of that project and reassure me that, thankfully, not all site meetings are that intense. A mentor sharing an on-site visit can expand the learning of less experienced co-workers by elaborating on construction means and methods. IN OUR REPORTS Our industry produces a variety of reports for our clients. For the purposes of this paper, the discussion of written reports will be condition assessments and QA reports. These reports provide both factual information and opinions. It is important to maintain impartiality during the factual aspects of these reports. Opinions, recommendations, or other subjective items must have a basis of support and not be based on “like” or “don’t like.” For general purposes, it is important to note that the readers of these reports may not have an intimate knowledge of roofing systems and materials. Therefore, common nomenclature is appropriate for providing a general overview of the subject matter without the use of detailed technical information. This approach allows the reader to understand the general concepts without needing to delve into the specifics of the assembly. For example, let us compare two sentences: • The roof is a four-ply built-up roof assembly with a mineral-surfaced cap sheet. • “The roof is a BUR with three layers of Ply IV and a layer of Cap, all set in Type III,. While both sentences are correct, the first sentence describes the assembly in general terms, whereas the second sentence uses specific nomenclature (material manufacturers will have even more specific nomenclature) that may require the reader to perform research to understand what the sentence is describing. When the specific assembly products are known, it is beneficial to outline the generic assembly, followed by a description of the materials. This allows the reader to understand the generic assembly and have the information needed if delving into the specifics becomes necessary. Condition Assessment A condition assessment report is generally used to document the current condition of the structure for periodic system evaluations, when components are nearing the end of their service life, or when there are moisture intrusion issues. ASTM E2018-15, Standard Guide for Property Condition Assessments: Baseline Property Condition Assessment Process1 includes information on the completion of the assessment and the report. The standard does not present a specific format to follow for the report, indicating that this should be decided between the end user and the consultant. We recommend that these assessments should contain the following items at a minimum: Description This portion of the report describes the building and has information regarding the various systems in place (roofing, wall, waterproofing). Historical information regarding the dates of installation, warranties in place, previous changes to original construction, as-built drawings and specifications, maintenance records, and other general information about the building should be included. It is important to differentiate between information obtained by actual knowledge and that reported by others or by documents provided for review. The sources of material information should be included in the report. Determining the composition of the building may involve topical observation, intrusive investigation, or both. If intrusive investigation is not performed, it may not be possible to verify the exact assembly. Applying a professional understanding of assemblies will allow the author to include items that “may be” or “are likely to be” included. For example, while examining a rainscreen system on a vertical wall, we may mention a weather-resistive barrier that is likely in the assembly but is not readily visible for verification. Verification of essential components may require cores or other intrusive investigation and should not be assumed. Current Condition This portion of the report provides the overall condition of the assembly and an estimate of expected remaining service life. This is an opportunity to identify specific conditions that may be in need of attention. The need to address each condition may be immediate or preventive against continued degradation. Conditions of concern should be noted from most to least severe, to provide the client an order of priority for repairs or modifications. This is a simple method to evaluate the conditions and how they may impact the service life of the assembly. When discussing the conditions of concern, it is beneficial to use basic, subjective characterizations (such as “good, fair, or poor”) or a grading system (such as A-Excellent, B-Good, C-Adequate, D-Marginal and F-Failure), along with descriptions of the characterizations/grades. It is important to provide a description and explanation for each condition of concern. This gives the reader an understanding of why a condition is characterized as it is, and what the potential impacts of doing nothing, or resolving the concern, could be, allowing the reader to make an educated decision regarding how to address the condition. Although many of the descriptions of the conditions of concern may be subjective, they should be based on the writer’s expertise, not their personal biases regarding products or installation methods. For example, the creation of a “pig ear” in an inside corner of a single-ply roof may not be a writer’s preferred method; however, if that installation method complies with the construction documents, it may be acceptable. Preferences of a writer should not be included without sound rationale to support them; otherwise, the preferences are subjective opinion and not in harmony with the impartiality that we strive for in our reporting. In addition, understanding the applicable building codes that were in effect at the time of installation is important for verification of correct installation methods. It’s important not to apply current building code requirements to older installations that may have been completed according to prior code requirements. Consider a 25-year-old shingle installation on a residence, without a drip edge at the eave. It would be inappropriate in this instance to indicate a code violation due to the omitted flashing, as the code in effect at the time of installation likely did not require the flashing. Recommendations This portion of the report will provide recommendations for the system. A global recommendation for the assembly is best presented as the first item. This should be followed by recommendations to address the current conditions in the same order they were previously ranked, from most to least severe. Each area of concern noted should have a recommendation II ii B E C International Convention & Trade Show | September 15-20, 2021 N Nelson | 83 provided, even if the recommendation is not to do anything. This creates an easy reference from concern to recommendation. To facilitate the global recommendation, the line-item concerns and related recommendations should be first be reviewed, and the level and extent of the work involved evaluated. During this evaluation, a newer application may have a small number of inexpensive recommendations that can increase the anticipated service life, whereas an older application may have many costly individual recommendations that may warrant removal and replacement as a better option. Therefore, the global recommendation for full removal and replacement may be warranted from the review of the related line items. Furthermore, understanding the owner’s expectations for the building may influence the ultimate decision. For example, if a building that is slated to be demolished in the near future has an expired roof system, repairs identified in the assessment may be a more suitable and cost-effective approach than replacement. Costs associated with remediation for each condition of concern can be presented in the Recommendations section. These costs are often estimated by the author of the report. Another method is to obtain cost information from contractors qualified to perform the work either in the form of a budgetary range or a formal proposal. If the cost information is based on contractor’s budgetary range or proposal, it is often helpful to provide that documentation to the client as an appendix to the report. Photographs Photographs are an essential part of most reports. The old adage that “a picture is worth a thousand words” reminds us that we can include an appropriate number of photos representing various conditions in lieu of voluminous text. A typical report may include an elevation photograph of the building entry either as a cover page or on the first page of the assessment so that the client can clearly understand the building and its elements. Photographs are typically provided as supporting figures to the written assessment and are therefore located following the text. Photographs should have captions describing what the photos highlight; there might be a caption for a single photograph, or a caption could describe conditions shown in a group of related photographs. Captions should include a number notation that can be used as reference in the related report text or in discussions of the report. Overview photos can aid the reader in quickly understanding the basic essentials being discussed. Including photographs in the same order outlined in the Description portion of the report will provide consistency to the reader. It is important to note all photographs taken during the assessment do not need to be included in the report. Photographs included in the report should supplement the text, but they should not overwhelm the reader with excessive images of the same condition. For example, if the windows of an apartment complex are of similar construction and generally properly installed, there is likely no need to include photographs of each window. Boxes, circles, and arrows can be added to photos to highlight important elements. For example, while examining a residence that was not aligned with ordinate directions, I found the use of colored boxes extremely helpful to designate the various roof areas and materials (see Fig. 1). In the text of the report, I was able to state that the asphalt shingles were identified in red, the standing-seam metal panels identified in blue, and the remaining areas were cedar shakes. This helped the reader understand which steep-slope materials were being used, and in what locations. The use of a photograph and colored boxes made the written description of the locations of the materials (referring to “red” and “blue”) easy for both the author and reader to follow. We recommend that consultants use a consistent methodology for every condition assessment survey and report. For example, when assessing a roof, a common reporting practice is to first discuss the building on which the roof system is installed, followed by a description of the roof system, including as much information as is known. A description of perimeter (or base flashing) conditions, slope, and drainage provisions follows. Large curbs with mechanical equipment, other curbs, and then penetrations would be a natural progression. By addressing items in logical sequence, from the largest item to the smallest (in terms of size), the author provides the reader with a flow that helps them understand the roof system. Consistently applying a particular method of organization makes it easier to gather information for each site visit and the draft the report because the process becomes repetitive. Additionally, if a consultant assesses multiple buildings for a client, each of the consultant’s reports will be uniform. If there are multiple buildings on the same property, only one report including information for all buildings should be created. QA Reports QA reports are used while construction on a project is underway to provide a snapshot of the project’s progress. These reports—which can be daily (meaning that the observer is on site each day work is progressing) or periodic (meaning that there are days of work progressing between site visits)—provide an essential service to our clients by providing a timeline of the events that are occurring on their project. For example, while preparing project documents for a roof replacement, review was made of original QA reports, which showed changes to the specified, bid, and submitted system. Further digging revealed approvals of the changes; however, the review of the QA reports provided critical information for the development of project documents. It is important to note that ASTM D7186-14, Standard Practice for Quality Assurance Observation of Roof Construction and Repair2 includes an “Observation and Recording Procedures” section. The standard prescribes guidelines for QA observation practices and recommendations for the accompanying report. Additionally, IIBEC has similar recommendations in the Manual of Practice.3 Gleaning from ASTM D7186, and the Manual 84 | Nelson IIiiBEC International Convention & Trade Show | September 15-20, 2021 Figure 1. Satellite view of residence. of Practice, we can identify key items to include in the QA report to establish a written and photographic record. Above all, QA reports should be clear, concise, objective and accurate in describing events. Both ASTM D7186 and the IIBEC Manual of Practice include a sample form that can be reviewed and used as an appropriate QA report format. A minimum of six photographs is recommended for each report, and once the report is complete, it should be distributed in a timely manner, no later than prior to the beginning of work the next day. The rapid delivery of the reports aids in the communication of essential items to all the parties. This is particularly important when there are unresolved defects that may require the involvement of other parties in addition to the on-site crew. One item that is briefly discussed in ASTM D7186 is the inclusion of a roof plan, which can show the reader the progress of the project at a given point in time. This plan can be as simple as a satellite image (see Fig. 2) with boxes imposed over the sections of work area and a key indicating what the colors represent. Degrees of opacity may be used to show the previous day’s work, with a solid fill representing the reported day’s work. This contrast in opacity allows the reader to see progress of the day, along with project’s progress. Additionally, the use of different colors for various aspects of the scope of work is helpful to show multiple progress areas on one plan. The use of the same color schemes from project to project will make the reporting easier, and if the reader is a repeat client, they will be familiar with the report format. Concision and Revision Although ASTM D7186 is specific to roofing, similar reporting formats can be used for all aspects of building enclosure elements. In discussions with many clients, we have found that a fairly concise reporting format is appreciated and provides the best balance of necessary information for their daily review, and historical information for recording purposes. For many years, our format has generally followed the ASTM and IIBEC recommendations, with slight upgrades as technology allows. Clients have stated that they jump from the description of the day’s events to the defects and resolutions section, to the photographs showing the day’s work, and finally the plan showing the day’s completed work. Spending 10 years on the contracting side of the roofing industry prior to coming to the consulting side provided me with a large amount of knowledge and experience regarding the application of roofing; however, drafting reports was not included as a part of my experience. When I wrote my first report for the consulting firm I worked for, my boss indicated that he would “bloody” up the report. Using a red pen, he deleted and inserted comments throughout the report—truly creating the “bloody” result he had promised. Following that experience, I strived to improve. Each time that you write a field report, condition assessment report, or a paper submitted for publication, you may expect the review process to be bloody. However, each time there is opportunity for powerful improvement with practice. There are opportunities to submit exceptional reports through IIBEC’s Document Competition, and to review these reports at the yearly conventions and through Interface. Reviewing reports prepared by others provides an opportunity to look for areas of improvement for our own reports, elevating our industry. Peer review of our reports provides an opportunity for a fresh set of eyes to review language, spelling, grammar, and sentence structure that we often miss when drafting reports ourselves. While reviewing our own work, our brains have the ability to fill in information that may be omitted from the written format and having a peer review of our reports helps find the gaps in thoughts and understanding. Often in our office, we will “cross-examine” each other while reviewing reports if we II ii B E C International Convention & Trade Show | September 15-20, 2021 N Nelson | 85 Figure 2. Example of satellite roof plan. identify statements that might not be defensible. For example, in a report about a building that was completed long ago, the author stated that they could tell that the installer was a skilled sheet-metal worker. The author didn’t know the installer, nor did they know the skills that the installer possessed, but they made an assumption about the installer based on the condition of the flashing. This statement should have been changed to describe the quality of the flashing, and not qualifications of the installer, thus reflecting the facts and not assumptions. By reporting facts without interjection of opinion, we can make reports that are not questioned. EXPERT TESTIMONY Rule 702 of the Federal Rules of Evidence4 states, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or date; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” From the moment that an expert is engaged in a litigation case, they must be aware of all their communication. Written notes, emails, draft reports, phone conversation notes, and other written items may be subject to discovery and could be used to determine the expert’s credibility. It should be noted that litigation is pursued when parties previous attempts to settle a disagreement fail, typically due to misconstrued or misunderstood facts. Therefore, the expert’s objective is to examine the facts in evidence of the case and provide an opinion based on those facts, regardless of where those facts may lead. Although we are often retained by one of the litigants, our role is to be a neutral third party who analyzes and presents the facts. The expert role is different from the consulting role, where we are our client’s representative. This distinction is important. While reading the deposition of an opposing expert, I noted that the expert indicated they are to be an “advocate for their client.” This indicated that their role was to represent their client’s interests, not to serve as an independent and unbiased third-party expert. A deposition is the process wherein attorneys examine persons involved in the case, to learn and provide clarity about that expert’s trial testimony. This written transcript may be used at trial to challenge statements the expert makes while on the stand. When you are an expert witness, it is essential that you thoroughly review ahead of the deposition your understanding of the facts in evidence, all documentation that you have produced, and reports issued by others relating to the case so that you are prepared for questioning. Answering questions clearly and answering the specific question that was asked are critical in legal proceedings. During questioning, it is essential that you clearly answer the full question and understand the questions that are asked. If a question is unclear, or if multiple questions are being asked at one time, you must ask for clarification so that you can properly and accurately answer the questions. During an RCI Convention class, Carl Cash indicated that he would take a three-second pause after each question during questioning. This tactic ensured that he did not attempt to answer a question that had not been fully asked, and it provided time for him to think of the accurate response for each question. Once a deposition is complete, the recorder will send copies of the deposition to the various parties to review and verify that the recording of the deposition is accurate. One of the items that I review is the listing of words used, generally in the back of the deposition, to see how many times unclear words, such as “un-huh” or “uh-uh,” were used during the deposition. In the context of the deposition transcript, these “pause words” are distracting and result in difficulty understanding the testimony. In contrast, a three-second pause is not reflected in the transcript and using clear, concise verbiage offers the readers a clear understanding of your answers. Head nods or shakes, shoulder shrugs, and other similar nonverbal responses must be avoided during deposition and trial, as they may undermine the clarity of the verbal response. I was involved in a litigation project where I performed a condition assessment of a roof with moisture intrusion issues. During the assessment, I spoke with the building owner and her contractor, who expressed their opinions prior to my assessment of the roofing system. Despite their opinions, I performed the assessment by topical examination and prepared a condition assessment report. The project eventually progressed to litigation. During my deposition, I was asked to produce documentation regarding the interviews performed with the owner and contractor. When I indicated that there was no documentation because I simply listened to their comments and based my assessment on the topical examination, I was accused of spoliation of evidence. Spoliation of evidence is where there is intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding. That is clearly something that would violate the IIBEC Code of Ethics,5 which states that the member “shall exercise unprejudiced and unbiased judgement and conduct when performing all professional services.” Listening to all parties involved in litigation provides some measure of information; however, each side has differing opinions (as evidenced by the litigation proceedings). The information gleaned by listening to the parties may not contain any actual facts and likely is skewed by the parties and their anticipated results of the litigation. Obtaining information and relying on the facts of the case is the role of the expert witness. Such witnesses are not obligated to record all interactions and conversations between parties, particularly if there are not any facts obtained during the conversations. However, the spoilation of evidence accusation made by the attorney against me is one of several techniques that may be used to try to discredit and unsettle an expert during a deposition. Mistakes are unfortunately a part of the communication process, and they are made often. The ability to admit fault when you make a mistake is a critical part of good communication. By admitting fault quickly and offering a resolution to the error, we show 86 | Nelson IIiiBEC International Convention & Trade Show | September 15-20, 2021 Q. Could you give me an idea of what type of services (consulting firm name) provides? A. Yes. uh-huh 5:15 106:17 uh-uh 5:15 II ii B E C International Convention & Trade Show | September 15-20, 2021 N Nelson | 87 others how we respond to adverse situations. I recall a deposition wherein I made a statement and subsequently realized that it was incorrect. I corrected the statement as soon as I recalled the correct fact, and the attorney questioning me indicated that he had intended to bring up the misstatement later in the deposition as he realized that I had erred. If that had happened, the attorney might have used my error to discredit my testimony. By admitting that I made a mistake, and correcting it as soon as possible, I ensured that little, if any, damage was done. In a deposition, the attorneys representing the litigants usually have an understanding of construction in general, as well as specific knowledge regarding the scope of your testimony. This may make the descriptions and explanations of various aspects of your testimony less exhaustive during deposition than during trial. The trier of fact, either a judge or jury, likely has little knowledge regarding your area of testimony. This means that our communication must change so that our testimony is expressed in such a way that a layperson can understand it. While testifying at a recent trial, I was explaining that the required number of fasteners holding a standing-seam metal roof in place was not sufficient, based on the manufacturer’s requirements. When asked what damage would be caused by this, I indicated that I did not know, but it was similar to an automobile tire that has four lug bolts, but only three nuts on the bolts. I didn’t know if there was any damage, but I wouldn’t want to drive very far that way. In taking something specific to our industry (the panels had 75% of the required fasteners), and using an item that is fairly relatable in general knowledge to illustrate my point, I was able to help the trier of fact understand the unknown issues with insufficient fasteners in this application. When preparing for deposition or testimony, it’s often helpful to review a mentor’s transcripts from other cases. This may provide insights regarding potential methods of questioning and questions that may be asked of you. An example of this would be a fairly standard question, “How much are you being paid for your testimony today?” If asked that question without preparation, one may refer to the standard fee chart and calculate the time involved and achieve a monetary answer. However, the question is framed to set you up as a “hired gun” and to provide an opportunity to discredit your integrity by implying that you are not providing independent testimony, but rather testimony that is bought and sold. A correct answer would be, “I’m not being paid for my testimony; I’m being paid for my time to testify.” This response correctly establishes the facts that the testimony is not for sale, but the time to testify is. CONCLUSION Communication is a skill we develop throughout our lifetimes. As we strive to improve our communication skills, our mistakes will decrease in number and the output will improve, both written and orally. Although our respective ponds may hold any number of skill sets, there are nine “ducks of thought” that I’d like to stress regarding our communication: Duck 1. Correct mistakes rapidly. Duck 2. Repetition is the mother of all learning. Duck 3. Practice testifying, writing, communicating. Duck 4. Consultants do not direct the work. Duck 5. There are many experts that make up a project team. Duck 6. Peer review is power review. Duck 7. “Bloody” reports are o pportunities for improvement. Duck 8. Answer the question that is asked clearly and factually. Duck 9. Make sure that your correct answer correctly answers the question. REFERENCES 1. ASTM International. ASTM Standard E2018-15: Standard Guide for Property Condition Assessments: Baseline Property Condition Assessment Process. West Conshohocken, PA: ASTM International, 2015. doi: 10.1520/E2018-15. 2. ASTM International. ASTM D7186-14: Standard Practice for Quality Assurance Observation of Roof Construction and Repair. West Conshohocken, PA: ASTM International, 2014. doi: 10.1520/D7186-14. 3. International Institute of Building Enclosure Consultants (IIBEC). Manual of Practice, 3rd ed. Raleigh, NC: IIBEC, 2020. 4. Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011. <https://www.law.cornell.edu/rules/fre/rule_702>. 5. IIBEC. IIBEC Code of Ethics. 2015. https://iibec.org/membership/code-of-ethics.
