Loss of Composure during Testimony Can Affect Verdict

Abstract

In the 1980s I participated as an expert for the plaintiff in a case involving slide failure of fill soil in a relatively deep and wide circular excavation. The plaintiff was the general contractor hired by the defendant to excavate the site for the construction of a flood control structure. The excavation was part of a federally funded project that was located in a back-swamp river deposit in the southeastern United States. Because the defendant had made an error in the construction drawings, the plaintiff inadvertently overexcavated a 90-foot-wide 27.432 m section of the circular excavation. The defendant’s error resulted in the plaintiff’s incurring significant additional expenses, which the defendant refused to pay. As a result, the general contractor sought payment through the U.S. Claims Court. The trial was a bench trial, meaning the judge acted as sole determiner of fact. The history of the suit is this: The plaintiff’s initial placement of the fill, done in accordance with construction drawings, slid into the excavation. The defendant ordered the plaintiff to remove the material that slid into the excavation and again place the fill on the slope. The second attempt also failed. At that point, the plaintiff felt that his company was placing the fill properly according to the defendant’s specifications and stopped all work until it could be determined why the fill material was sliding. Eventually, after significant delays, the defendant developed another—and successful—procedure for placing the fill on the slope. When the job was completed, the plaintiff submitted a request for payment. The request included the costs for the extra work for placing the fill on three separate occasions and for the delays associated with work on other construction that had to be interrupted to address the slope repairs. The request for payment for the extra work was denied, so the general contractor decided to seek payment through litigation. In preparation for testimony as an expert witness for the plaintiff, I investigated the site and contractor’s work. My investigation showed that during the excavation process, the surface of the original soil had been disturbed and remolded by the plaintiff, resulting in a marked change in the consistency of the clay soil. Based primarily on examination of the defendant’s onedimensional consolidation test curves, I determined early on that the clay soil on the slide plane was sensitive and resulted in the sliding failure of the fill. The test curves for the subject soil exhibited the concave-inward shape that is typical of sensitive clays. My determinations contradicted the contentions of the defendant’s engineers, who argued that the clay soil on the slide plane was not sensitive and that the failure resulted from the plaintiff’s poor workmanship. But the defendant’s geotechnical engineers had not accounted for the soil’s sensitivity in their slope stability analysis. They had used the undisturbed, unconfined compressive test strength of the soil instead of the remolded strength. This failure to accurately determine the soil’s sensitivity should have weighed the verdict for the plaintiff. However, a different kind of sensitivity—my own—perhaps left a negative mark on the outcome. For the trial, the defendant hired a world-renowned educator and researcher in physical properties and behavior of soils. The expert had previously done considerable research on sensitive soils and produced many publications on the subject, including a popular textbook. The expert agreed with the defendant’s engineers that the soil on the failure plane was not sensitive. Knowing the credentials, experience, and renown of the defendant’s expert far outmatched mine, I carefully reviewed his publications on sensitive soils. When I examined the textbook he had authored, I found a graph that he had developed for estimating a soil’s sensitivity based on three geotechnical parameters. The graph was based on data from many geographical locations. Using the expert’s parameters and the defendant’s own soil data, I found independently that the expert’s graph clearly and demonstrably showed that the soil in question was indeed sensitive. At the trial, the plaintiff’s attorney asked the defendant’s expert if the soil was sensitive. Under oath, the expert stated that it was not. The attorney presented into evidence, for the witness’s consideration, the defendant’s project plans containing numerous soil-boring logs and the results of myriad soil tests. Next the plaintiff’s attorney offered a textbook into evidence and asked the expert if he had authored the textbook, which, he acknowledged, he had. At this point, the plaintiff’s attorney drew attention to a particular graph in the textbook relating to soil sensitivity and asked the expert specifically if the graph was his work. The expert answered that it was. Having established the expert’s published position about iden