Stagnant productivity in engineering and construction expert witness practice is a major contributor to the cost of dispute resolution in what remains a highly contentious industry.
Charlie Woodley offers insight into the underlying causes and how embracing digital ways of working improves productivity and conveys a digital advantage to advisor and client.
Most senior practitioners agree little has changed over careers spanning decades despite the adoption of technology within the industry and amongst legal advisors, the question is why?
This post is not intended to lambast experts. Instead, I assume good faith in their assertion to be client and outcome-focused whilst highlighting the issue so they might reflect on the reality of service delivery and scope for efficiency gain.
Some espouse client focus whilst intentionally turning a blind eye to efficiencies that would benefit their client, often under the guise of being commercially minded. Profiteering off inefficiency is unethical and those that do forgo the right to claim to be leaders in their field whilst also risking major reputational damage.
A question of awareness
Acceptance of the need for change can only follow awareness. To that end, those serious about structuring their practices for future success ought to recognise that
Dispute resolution is perceived as too costly with experts caught in a pincer movement with pressure to reduce cost from the judiciary, instructing solicitors and from clients
Analogue working practices result in disproportionate budgeted resource being spent finding, extracting and structuring relevant data
Technology and know-how expedite these front-end processes priming data for more comprehensive analysis, improving service quality and client prospects
Demonstrable time, cost and quality efficiencies build client value and trust. This is esprecially true when the objective is damage limitation
Client value is eroded by a failure to move with times leading to commoditisation and rate erosion
To catalyse the reflective thinking necessary for acceptance I urge readers to consider how they would respond should a potential investor ask what their strategy is to counter commoditisation?
Conversely, I put to the investment community that the absence of a strategy to counter commoditisation justifies a lower valuation of a prospective acquisition whilst digital enablement future proofs the business, improves comeptitiveness, grows margins and substantially adds value.
Although I only touch on some of the market forces at play, in my view client value and defence against commoditisation necessitate continuous productivity improvement to justify premium rates.
Levelling the playing field
Digital ways of working enable the tech-enabled expert to achieve more, quicker and for less. This directly translates into improved service quality or value for the expert and increased options for the client and legal advisors.
Small tech-savvy expert practice offers the legal community a fast track route to achieving client value by increasing certainty of cost and by accomplishing more than larger slow-moving practices
Importantly, the smaller tech-savvy expert practice offers the both end clients and the legal community a fast track route to maximising client value by increasing certainty of cost and by accomplishing more than larger slow-moving practices who rely upon, if not perpetuate, slow and costly analogue processes.
This is conditional on the ability to demonstrate stated digital is not only a bolt-on or window dressing but business as usual. The makes for a more competitive market and additional choicee for the engineering and construction legal sector, helping to level the playing field.
How practices perceive market forces is relative. The opportunities for smaller practices will be threats to larger practices. The barriers to productivity improvement are greater in larger practices providing a David and Goliath opportunity for smaller practices to harness technology, better compete and grab market share.
A question of timing
If experts accept the need to address stagnated productivity then consideration shifts to timing. Given the decades of stagnating productivity in expert services the time to act is now. For the nay sayers, the desire to maintain the profitable status quo at the expense of client value can result a wait and see stance. This is at odds with claims to be client or outcome focused.
As food for thought, below I comment on several of the rationales I have encountered for stalling technology based productivity improvement.
There is no issue with productivity or the impact on efficiency is overstated
Senior practitioners delegate pre-analysis processes to junior personnel and typically lack first-hand experience of commonplace information challenges
Without specialist data wrangling understanding experts cannot provide guidance that would avoid abortive work, duplication of effort and costly labour-intensive data extraction
There is a misconception amongst experts that use junior personnel at lower rates (but high margin) mitigates inefficiency. This despite mundane data entry often being undertaken at 10 times market rate.
Efficiency is bad for business and threatens revenue
Matter-of-factly this is position unethical and discounts the connection between efficiency and service quality, expectation realisation, client value, and client relationship development
Senior practioners often suggest to up and coming experts that they need to be "more commercially minded". The sentiment is the same with revenue not client value the focus
In claiming efficiency is bad for business they deny the benefit of competitive advantage, improved client retention and the associated routes to increased revenue.
We should wait until after competitors move
Adopting a reactive strategy eliminates any opportunity for competitive advantage. It also ignores the time necessary for investment in people, process and technology to achieve parity with competitors
The approach runs contrary to expert claims to be client-focused and is unethical in that it perpetuates profiteering through inefficiency at the expense of clients. The expert must accept the associated reputational risks.
End clients and legal advisors are not asking for it
End clients and legal advisors would not ask an expert if they can use Microsoft Word or Excel. In the same vein, they expect competent information governance and technical proficiency in the use of forensic tools and techniques
The misconception amongst end clients and legal advisors that experts already harness technology to drive efficiency and client value is in part due overinflated claims in marketing collateral. This risks exposure, especially for larger practices, should they attempt to leverage investment in technology for marketing purposes
IT, not fee earners should determine what technology is needed
The dilemma facing practice leads is that experts without data expertise are unable to understand the potential of forensic technologies nor to critically evaluate current productivity or articulate technical requirements. That they delegate document handling and processing to junior resources without meaningful direction only perpetuates the lack of understanding
Conversely, the peculiarities and challenges faced by fee earners working with client data are little understood by typical IT personnel. What results is regression to the norm, the norm being generic hardware and software that perpetuates the status quo frustrating innovation and leaving junior personnel ill-equipped for complex data wrangling
Larger bureaucratic practices wishing to benefit from the ability to rapidly evaluate and resolve document processing or analytical bottlenecks can outsource. This avoids client outcomes being compromised when time critical data wrangling must be completed in shorter timescales than could realistly be achieved inhouse
Smaller practices are less constrained by rigid policy and duly informed experts are free to timeously procure and implement appropriate solutions whilst taking appropriate security precautions. As with larger practices, outsourcing remains a viable option where a shortage of inhouse computing power or data wrangling expertise is a constraint.
Experience from digitalisation within the wider industry has shown investment in people, process and technology is necessary i.e. there is no magic switch waiting to be flipped in response to any singular event or competitor announcement.
The next generation of experts is better placed to acquire personally acquire the data wrangling expertise as they learn their trade
Arguably the next generation of experts is better placed to acquire data wrangling expertise on the job. This begs the question, how can practices best tech-enable seasoned practitioners constrained by analogue technique?
The same only better
The time limitation and uncertainties of expert witness practice mean most experts have a predilection for tried and tested method. So how can you marry the need to improve productivity with the perceived risk to service delivery?
The good news for experts is that their day to day need not change, principally because their role in analysis design, output analysis, opinion formation and report drafting remain largely unchanged.
Quality of an expert’s output is improved by time, cost and quality benefits enabled through the application of data wrangling skill encompassing process and technology. Ironically, data management, discovery and extraction are perceived as low value activities and delegated to junior personnel. Changing this misconception is a must if digital ways of working are ever to become business as usual.
Experts ought to recognise their output is largely dependent on what can be done with the available project data. This includes governance, investigation and the capture and structuring of relevant data for analysis, all of strategic importance. Delegating these activities to junior personnel without meaningful guidance is typically counterproductive resulting in otherwise avoidable abortive work and duplication of effort that result in inflated budgets. The hallmarks of inefficiency, these are often the basis on which clients justify demands for fee rebates.
To achieve digital advantage in the short term senior practitioners must buy into the need for change. Individual experts and smaller practices are better placed to reach consensus on the benefit and seize the opportunity whereas larger practices, with larger numbers of influencial senior practioners, are constrained by committee.
There are practical steps expert practices of all sizes can take to harness technology to kickstart seismic improvements in productivity without wholesale change to expert practice. To understand what we could do for you or to discuss the contents of this post further please contact us.
About the author
Charlie Woodley, Managing Director, has provided analytical firepower to the claims and disputes sector for over 12 years. He combines established legal forensics with emerging technologies and provides solutions that unlock efficiency gains in claim preparation and everyday business operation. Charlie’s experience incorporates contracting, claim and expert advisory and expert witness practice. He has supported technical, quantum and delays teams and been instructed as data expert in international arbitration. Convinced of the potential of technology to disrupt dispute resolution, Charlie writes from a digital perspective incorporating his commercial experience and research in the fields of dispute causation and behavioural economics. firstname.lastname@example.org
About Dispute Data
Dispute Data is a specialist data wrangling consultancy servicing the global engineering and construction sector. They harness technology to find, collate, clean and unify messy and complex data sets for easy access and analysis. Spanning commercial operation, claims, dispute resolution and expert services they provide analytical firepower and information expertise when its needed most. For further information please visit www.disputedata.io