By Ted Bumgardner
(Introduction by David C. Cardone, Esq.)
The author of the article below, Ted Bumgardner, has over 40 years of construction management and construction litigation experience. He has been involved in more than 700 construction disputes as an expert witness. As an attorney involved in real estate and construction law in Southern California for 15 years, I’ve both known of and known Ted for nearly as long as I’ve been licensed to practice law in California. To describe Ted as a titan in the world of construction experts is simply insufficient. In my view, despite his decades of technical experience and success operating various construction industry businesses, the principal reason for Ted’s success as an expert witness – and why he gets multiple phone calls soliciting his involvement in just about every high-profile construction dispute across the western states, is because of how Ted relates to people.
He wrote the following article offering insights into how he does so, not only as an expert but as a mere stranger on an evening flight. Ted provides reason to consider empathy in how construction industry companies conduct their business. Every choice about which projects and partners to work with, every email that is written, every decision that is made about a project – including whether and when to commence or settle litigation – should be made with due consideration of how your company will look should a dispute later arise. And those choices and decisions should be made with consideration of the perspective of the other parties involved. Doing so is important: Being empathetic in your approach to business can directly affect the results for you and your business.
The following article of Ted’s was originally published in a slightly different version.
Several years ago, on a late evening flight to Dallas, we touched down in El Paso to drop off and take on passengers. The seat next to me had been left vacant by the deplaning passenger who sat next to me from San Diego, but was quickly filled by a clean cut young man in his late 20s with a white crew neck t-shirt, a brown leather bomber jacket, wire rimmed aviator glasses and hair cut “high and tight.” I was done reading a file that I had brought along and found myself ready to strike up a conversation. My seat neighbor began reading a current issue of Law and Order Magazine and had a copy of Law Officer Magazine as well. It was pretty obvious to me that this guy was a police officer, so, with confidence, I asked, “how long have you been in law enforcement?” He responded that he wasn’t in law enforcement. The conversation that followed revealed that he was actually a very successful software developer and had been working with the El Paso Sherriff’s department for the past few weeks installing and implementing a system that he had developed to track criminals through the criminal justice system. I learned that although he had no educational or professional background in law enforcement himself, his client base was law enforcement. He had many friends in law enforcement and he spent a considerable amount of his recreational time with people in law enforcement.
Then I had one of those “ah ha!” moments. This guy had become successful at what he does to a great extent because of how well he empathized with his client. In a way, he had actually become his client. I am sure that he was a fine programmer, but I wondered if his ability to put his technology into action was driven more by his ability to see the world through the eyes of his client than it was by his ability to write code. The true value of technology is established by its application, after all, and not necessarily its mere technical brilliance.
Some time ago we took an introspective look at our construction consulting business and realized that some project managers seemed to have a propensity for successful projects and some project managers seemed to struggle with their projects more frequently. We had always seen that some managers “get it” and some didn’t, but we had not set out to really define what “it” was. After some analysis, it became apparent that the “it” was empathy. I realized that the success of a project manager was quite often more a result of a project manager’s ability to see the world through the eyes of the client than it was the result of technical competency or knowledge. Certainly, a base line level of technical competency is critical, but my conclusion was that a project manager’s success – and our success as a company – seemed to be more directly related to the manager’s empathetic skills. And by that I mean the good faith ability to see the world through our client’s eyes and approach work from that perspective.
Obviously, empathetic skills help the consultant to understand the client’s objectives and the better the client’s objectives are understood the more likely the consultant’s objectives can be accomplished by the consultant. More significantly though, the better one can empathize with a given client’s perspective and objectives, the more efficiently and effectively the consultant is able to implement the best solutions. Less obvious, but perhaps most significant is that when the consultant has literally and figuratively sat on the same side of the table as the client, he has a better chance of being perceived as a part of the solution as opposed to a part of the problem when a problem does arise.
I’ve been in construction for decades. But much of the last 25 years has been spent on construction forensics, working with attorneys involved in construction-related disputes, often involving defect litigation or disputes over delay claims. Generally, litigation forensics – working as an expert witness – is known to be a no-nonsense “just the facts ma’am” kind of a business where the expert has to be a non-advocate who is dispassionate about the outcome. That’s probably more true in construction disputes than in virtually any other area of litigation support. So what does this “touchy-feely” and highly subjective empathy stuff have to do with being a good expert in construction disputes? Answer: Lots.
As an expert witness, I’ve testified in a lot of jury trials. I have seen first-hand that juries make decisions not just on what they see and hear, but on what they see and hear that they believe. Jurors tend to believe what they can understand. When an expert witness can see the world through the eyes of a juror who does not have education, technical background, and experience in construction issues, the expert can then understand best how to present the information in a way that the juror can understand. Expert testimony, like any other form of communication, is greatly enhanced by the ability of the communicator to empathize with the recipient. And at trial, the recipient is the jury.
Many experts are so impressed with their own technical wherewithal that they miss the most important point of all. The expert’s opinion is not worth a dime if the jury doesn’t buy it. Now there’s a humbling thought. The opinion of that retired postal worker, shopkeeper, or schoolteacher in the jury box is the only opinion that ultimately counts. The expert that has the ability to communicate complex technical issues in a way that the average non-technical person can see it as simple will nearly always prevail. The expert must first be able to see the technical issues from a non-technical perspective in order to understand how to best communicate his opinions to the non-technical juror. And in a jury trial, that requires empathy.
Despite the above, approximately 95% of construction litigation cases, resolve before they get to trial. In construction defects litigation especially, the battleground often becomes the mediation setting where the parties work with a mediator – a “neutral” – to find a negotiated outcome. The most effective experts in the mediation context are not just good talkers, but are primarily good listeners. And listening is an essential component of empathy. By first hearing where the other side is coming from and endeavoring to see the other side’s perspective, an effective expert can present opinions in a way that will be best received and therefore, most persuasive. The best experts don’t come to the table to “horse-trade” opinions, but to genuinely gain an understanding of the opinions of others and to help others understand their own opinions. At its best, the mediation process involves both a genuine quest for common ground as well as a sizing up of the opposition that ultimately figures into the decision to settle or fight. Experts with strong empathetic skills are able to communicate in a way that the opposing side will see and respect what they will be up against if the case does go to trial. In this setting, the astute expert can bring clarity and simplicity to the most complex issues and thereby draw a little of his sword from its scabbard and show its shiny sharp edge. Few things are scarier to an opposing attorney than an expert who can clearly communicate complex concepts in a simple manner that they know jurors will view as common sense.
Ted Bumgardner is a senior construction forensic specialist with The Vertex Companies. He has a thorough knowledge of all aspects of commercial, municipal, public works, and residential construction, forensic investigation, and construction defect litigation. Ted can be reached at TedBumgardner@gmail.com.
David D. Cardone is a founding partner of Dunn DeSantis Walt & Kendrick. David represents businesses and business owners involved in litigation, including class actions and employment matters. In addition, he regularly represents and counsels businesses on strategic, non-litigation and risk management matters. He can be reached at dcardone@ddwklaw.com.
Dunn DeSantis Walt & Kendrick provides a broad spectrum of legal services to businesses of all sizes, from small, local start-ups and non-profits to large, national companies. DDWK’s real estate development and construction practice includes representing all segments of the development and construction industries on both private and public projects.
You can find additional information and resources related to helping business owners and their businesses on the DDWK website.
