Abstract image of orange panels.

Tales from the Hot Seat

November 13, 2019

When Frank Gatlin recently made a presentation about his job as an expert witness, he playfully titled it, “Surviving the Chair,” a subtle reference to a form of capital punishment. Gatlin knows what it’s like to be on the hot seat. For more than 25 years, he has provided expert analyses and testimony in disputes involving design deficiencies, schedule delays, cost analysis, errors or omissions, and defective construction.

An architect and a Managing Director at Ankura, Gatlin has forensically analyzed numerous projects, prepared expert reports, and provided expert testimony in depositions, mediation, arbitration and at trial. His project expertise includes office buildings, court houses, residential developments, hotels, schools, hospitals, and historical restoration projects.

Through it all, he has been guided by this principle: tell the truth. “The only stabilizer you have in the chair is the truth,” Gatlin said. As an expert witness, Gatlin is often exposed to an opposing attorney seeking to discredit his testimony. The attorney can be charming or intimidating. The attorney can ask leading questions or ask the same question in different ways. The attorney can try to wear down the witness through long hours or days of cross examination. The attorney can do all or none of the above; you never know what type of cross examination you will encounter.

“The opposing attorney’s objective is to discover what you know, and what you don’t know,” Gatlin explains. “He’s trying to maneuver you to make his client’s case. He wants to commit you to making statements under oath, and if you change your testimony, he will attack your credibility.” Gatlin recalls a time when he watched another expert witness unravel when his resume was challenged by an opposing lawyer. The witness stated that he had graduated from a recognized military academy. The lawyer slid a stack of yearbooks across the table and asked the witness to pick out his photograph. The witness then admitted he hadn’t attended the military academy. With this admission, the jury didn’t get to hear the witness’ analysis, he had simply lost the case.

“Being a witness is an arduous task,” Gatlin said. “Your attorney is hoping you don’t make a mistake. The attorney on the other side has one goal: to trip you up, ruin your credibility.”

Gatlin is a registered architect in 16 states. As a result, many of the cases on which he’s called to testify involve disputes over deficient design and construction. Called on to examine the facts and provide analysis, Gatlin follows the architectural “standard of care” guidelines. In essence, he tries to determine what a professional architect would do practicing in the same location, at the same time, under the same set of circumstances. He sometimes finds that an architect has failed to provide a complete and well-coordinated set of design and construction documents.

Consider the case of would-be developers who decided to build a seaside condominium building. Having little knowledge about development, they hired an architect who submitted incomplete plans. The project moved forward anyway. Once the project was completed, problems started to surface. The building began swaying, the stucco exterior started cracking, water began to pour in from the roof, and there was mold inside the building. Gatlin was hired by the developers to analyze the plans and he determined that the architect didn’t demonstrate a reasonable standard of care.

“My mantra is: I state my opinion based upon my review of documents and what a reasonable, prudent architect would do. My opinion is made with a reasonable degree of professional certainty,” Gatlin said. He estimates he takes the witness stand in a trial in only 20 percent of his cases. Settlements often occur because neither plaintiff nor defendant wants to go to trial, Gatlin said. Testimony before a jury poses a special problem: “One thing both sides want to stay away from is bringing a construction case to a jury. A jury can have difficulty understanding the design and construction process, and it takes too long to educate them,” Gatlin said.

He also finds in many cases that both parties share the blame, or what he describes as, “all parties have a little bit of sin.” For instance, Gatlin was once called as an expert witness in a case of a general contractor being sued for alleged faulty work on a medical building. Even though the contractor had left the project two months into the job and wasn’t responsible for the problems with the final project, Gatlin recommended a settlement to avoid a lengthy trial involving a complex and confusing set of circumstances. Through his analysis, he concluded that the contractor, despite his short tenure on the job, still had exposure.

“If I see bad news, I tell clients. Do not take this case to trial. Save the time and money and settle,” whether they are plaintiffs or defendants Gatlin said – another example of Gatlin’s penchant to tell the truth. Gatlin’s conclusion about being an expert is simple: “An expert witness has an obligation to tell the truth, even if the truth doesn’t help your client. In the end, the truth is all you have.”


See more from Insight from Hindsight | Issue 29