CAPTURE THE IMAGINATION WITH VISUALIZATION:

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1 American Bar Association Forum on the Construction Industry Midwinter Meeting 2014 CAPTURE THE IMAGINATION WITH VISUALIZATION: The Hottest Trend in Change Order and Scheduling Analysis Ben D. Nolan III, P.E., PSP Berkeley Research Group, LLC Gulf Breeze, Florida Dorsey Carson, Jr., Esq. Carson Law Group, PLLC Jackson, Mississippi

2 VISUALIZATION Evolution to Visualization 2D-plans, drawings, sketches, graphics 3D-CAD, BIM, LIDAR, Models 4D-incurred: elapsed time, projected: modeling future As-Planned (Synchro) 5D-elapsed time and cumulative cost

3 VISUALIZATION A Highly Effective, Proven Method to Present Schedules and Designs Using Objects and Animations Fact Based: Schedule: As-Planned and As-Built: Comparisons Over Time Design: Revisions, Design Changes, Value Engineering, Means and Methods, Defects Screen-Based Learning/Teaching Method 5 th Grader Can Understand

4 VISUALIZATION OF DESIGN CHANGES Base or Contract Scope of Work Using Plans and Drawings Using Pictures Using Visualization Case Studies

5 VISUALIZATION: DESIGN OVER TIME IN 3D Revisions, RFI s, Sketches, ASI s, etc. Design Changes: Bid vs. IFC vs. CO s Value Engineering: Bid vs. IFC vs. VE Contractor s Means and Methods: Industry Standards vs. Contractor s Plan Out of Sequence Work Labor Productivity Differing Site Conditions Defects

6 VISUALIZATION: DESIGN CHANGES

7 CORRECTIONS TO RELEASE SET DESIGN: RFI 17 11/17/09 Comparison of CA20-05 Release Set Bill of Materials with released design reveals 33 revisions to quantities and material dimensions. Red colored structures in model represent items changed between as-bid and released design. APP-CA20-S5B Rev. 4 Bill of Materials: April 28, 2010

8 DESIGN ERRORS: RFI 109 5/26/10 RFI 109 depicts rebar interference with structural elements.

9 OBJECTION!

10 USE OF VISUALIZATION AT MEDIATION: NO RESTRICTIONS The Federal Rules of Evidence (and various states rules of evidence) apply only to judicial proceedings. Voluntary and nonbinding no specific evidentiary test.

11 USE OF VISUALIZATION AT ARBITRATION: LOWER ADMISSIBILITY STANDARD THAN COURT Arbitrators not bound by rules of evidence Arbitrator may reject evidence that is cumulative or irrelevant However, arbitrator may not refuse to hear evidence pertinent and material to the controversy (FAA) May be grounds to vacate award, but some prejudice must be shown

12 USE OF VISUALIZATION AT TRIAL: SUBJECT TO RULES OF EVIDENCE Visualization is usually considered illustrative (pictorial, visual aid) rather than substantive (demonstrative, immediate) I.e., offered to illustrate or explain the testimony of witnesses, including experts Counsel may rely on such aids during opening and closing statements

13 USE OF VISUALIZATION AT TRIAL: SUBJECT TO RULES OF EVIDENCE Some disagreement concerning their evidentiary status of visualizations, e.g.: Same as other admissible exhibits For demonstrative purposes only Not treated as exhibits at all

14 OBJECTION! Your Honor, I object on the basis of lack of foundation and authentication! Rules 901 &703

15 RESPONSE #1 (R. 901,703): WE WILL LAY THE FOUNDATION ESTABLISH PROPER PREDICATE FOR INTRODUCTION OF VISUALIZATION Must authenticate all types of visualization evidence FRE 901 and state court analogues Rule 901. Requirement of Authentication or Identification (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

16 RESPONSE #1 (R. 901,703): WE WILL LAY THE FOUNDATION ESTABLISH PROPER PREDICATE FOR INTRODUCTION OF VISUALIZATION First, show relevance. Demonstrate that facts are of consequence to suit. Second, call your expert witness to the stand. Elicit testimony re: experience, background, familiarity with visualizations of this type, and method of preparing this particular exhibit.

17 RESPONSE #1 (R. 901,703): WE WILL LAY THE FOUNDATION ESTABLISH PROPER PREDICATE FOR INTRODUCTION OF VISUALIZATION Judge tests the sufficiency, i.e., whether a reasonable jury could find that the proponent of evidence has carried its burden of authentication. The judge should not weigh credibility, leaving such considerations to the jury. Opponent can offer contradictory evidence or cross-examine the expert witness.

18 RESPONSE #1 (R. 901,703): WE WILL LAY THE FOUNDATION EXPERT DID NOT HAVE TO ACTUALLY PREPARE THE VISUALIZATION Visualization is a demonstrative aid, and illustrative and derivative of the expert s opinion. Expert also may rely upon otherwiseinadmissible evidence (FRE 702).

19 RESPONSE #2 (R. 901,703): THE VISUALIZATION USES RELIABLE, CONTEMPORANEOUS DOCUMENTS Expert testimony, along with any visualizations must be reliable, which includes the reliability of the underlying data relied upon by the expert or used in the visualization, which can include documentary evidence. Documents created contemporaneously generally considered more reliable.

20 RESPONSE #2 (R. 901,703): THE VISUALIZATION USES RELIABLE, CONTEMPORANEOUS DOCUMENTS After establishing your expert s qualifications, have your expert witness walk through the time, detail, analysis, and preparation on this particular case, including identifying. what documents were used to develop the visualization, why those documents are reliable, and how those particular documents were used to prepare the expert s visualization. Documents such as as-planned schedules, as-built schedules, change orders, plans and specifications, daily reports, photographs, and other contemporaneous documents are vital to establishing the reliability of the visualization.

21 RESPONSE #3 (R. 901,703): THE VISUALIZATION IS A FAIR AND ACCURATE REPRESENTATION The actual mechanics of the creation of the visualization may not matter, so long as it is a fair and accurate representation of other admitted testimony or documentary evidence. Witness testimony that visualization matches their own perception likely will satisfy this authentication requirement.

22 VISUALIZATION: DELAYS Classic Approach: As-Planned vs. As-Built charts Best Practices/Current Approach: As-Planned 4D CAD model over time (Animation) As-Built 4D CAD model over time (Animation) As-Planned vs. As-Built 4D CAD over time (side by side comparison) Case Studies

23 VISUALIZATION: SCHEDULE OVER TIME IN 3D As-Planned Critical Path: Critical vs Near- or Non-Critical Activities Schedule Updates Progress: Activities as Objects Impact or Delay Events in a Time Period Windows Analysis Contemporaneous Critical Path in a Window Shifts in Critical Path Activities As-Built Critical Path: Expert Analyses Side by Side Incomplete Work as of Milestone Dates

24 VISUALIZATION: DELAYS: SHOW ME THE MONEY

25 VISUALIZATION: DELAYS: SHOW ME THE MONEY

26 VISUALIZATION: DELAYS: SHOW ME THE MONEY

27 OBJECTION! Your Honor, this is demonstrative evidence that doesn t meet the Daubert standard! Rule 702

28 RESPONSE #1 (R. 702): DAUBERT DOESN T APPLY TO THE VISUALIZATION BECAUSE IT IS ILLUSTRATIVE, NOT SUBSTANTIVE Any visualization which constitutes a part of the expert s test is substantive and must satisfy the Daubert standard. Purely illustrative visualizations (i.e., derivative of other evidence) just have to be authenticated.

29 RESPONSE #2 (R. 702): EVEN IF THE VISUALIZATION IS CONSIDERED SUBSTANTIVE RATHER THAN ILLUSTRATIVE, IT MEETS THE DAUBERT TEST Exhibits (e.g., computer simulations) which involve the application of the expert s knowledge to the facts are subject to Daubert review to the same extent as the expert s testimony. However, Daubert does not necessarily extend to the underlying facts upon which the expert has relied.

30 RESPONSE #2 (R. 702): IT MEETS THE DAUBERT TEST If program is commonly used and is sufficiently reliable, cross exam is best method of resolving factual concerns. Any inaccuracy in the data goes to the weight of the evidence, not its admissibility.

31 OBJECTION! Your Honor, the probative value of the visualization is substantially outweighed by its prejudicial impact! Rule 403

32 RESPONSE #1 (R. 403): THE VISUALIZATION IS FAIRLY ACCURATE No visualization will be perfectly accurate. Fair and accurate, not perfection, is the standard for admissibility. However, exhibit still may give rise to improper inference. Exclusion is justified under Federal Rule 403 when the danger substantially outweighs probative value. Balancing test favors admissibility.

33 RESPONSE #1 (R. 403): THE VISUALIZATION IS FAIRLY ACCURATE Preliminary evidence should be given as to the correctness of the representation; either proof of proper scale (by corroborating evidence) and/or an explanation as to how the representation differs from reality can make a somewhatinaccurate model admissible. Witness must certify that it is a fair and accurate depiction of the underlying facts. Witness testimony might be insufficient in more complex or technical cases.

34 RESPONSE #1 (R. 403): THE VISUALIZATION IS FAIRLY ACCURATE Prejudice must substantially outweigh probative value General rule: models, animations, or other visualizations are admissible if, although imperfect, they are not materially deficient or likely to mislead or confuse the jury.

35 RESPONSE #2 (R. 403): ALTHOUGH IMPERFECT, THE VISUALIZATION ASSISTS THE FACT-FINDER AND IS NOT MISLEADING If the visualization is distorted, exaggerated, or misleading, may be excluded. However, there is no legal requirement that the visualization be to scale deviations go to weight of evidence, not admissibility.

36 RESPONSE #2 (R. 403): ALTHOUGH IMPERFECT, THE VISUALIZATION ASSISTS THE FACT-FINDER AND IS NOT MISLEADING Models or simulations which do not take into account other contextual factors can be disallowed if they will mislead a jury. Jury instructions limiting the importance of the exhibit may allow it to be considered.

37 RESPONSE #3 (R. 403): A LIMITING INSTRUCTION CAN REDUCE ANY PREJUDICE Example 1 Construction injury suit visualization of plaintiff s injuries relevant to show damage, but could also prejudicially incite the jury to believe that the workplace was necessarily dangerous. Judge may give a limiting instruction that directs the jury to consider the exhibit only for its proper use. The traditional assumption that the trier of fact can and will adhere to such limiting instructions.

38 RESPONSE #3 (R. 403): A LIMITING INSTRUCTION CAN REDUCE ANY PREJUDICE Example 2 Acceptable level of distortion will depend on type of case e.g., personal injury suit vs. complex construction claims Propose limiting instruction to explain any distortion in visualization. Trial court makes the final determination of admissibility; reviewed for abuse of discretion.

39 VISUALIZATION: DELAYS: SHOW ME THE MONEY

40 VISUALIZATION: DELAYS: SHOW ME THE MONEY

41 VISUALIZATION: BENEFITS Thorough Understanding of the Issues (Ah Hah!) Screen Based Learning Mode Reduces Complexity of Learning Tells the Story

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