Executive summary. A relatively recent microtunneling case was decided via a bench trial. The judge charged with deciding the case put a good bit of weight on the credibility of the witnesses. And he wasn’t shy about it. The lesson here is when in a court of law, either on the stand or in deposition, be truthful. Not being straight up could discount your entire testimony.
The little disclaimer. As I have stated before, I’m not a lawyer. Before you commit yourself to wholly following my commentary herein, talk to your attorney!
Source of information. The facts in this article relative to the case were all taken from one document: “Findings of Fact and Conclusions of Law” — filed December 9, 2024, in Engineering & Construction Innovations, Inc. v. Bradshaw Construction Corp., Case No. 20-cv-808 (D. Minn.), ECF No. 537. You can find this document at the QR code at right.
What’s a bench trial? There are two basic types of trials: a jury trial and a bench trial. The former is in front of a group of people considered your peers and the latter uses a judge instead of a jury. Lawyers have the option to choose one or the other, and often times it is thought that a bench trial will be less emotional, and more factual.
Ok, give me the background on the case. In 2019, Engineering & Construction Innovations, Inc. (ECI) won a $16 million project to bore a 60” casing (to carry a 48” water line) under the Mississippi River for City of Minneapolis, Minnesota. They subcontracted the microtunnel portion out to Bradshaw Construction Corporation. Bradshaw was unable to complete the bore and ECI took over the work and completed it many months later.
ECI ended suing Bradshaw and their surety, Travelers, for about $7 million in federal court.
In addition to the project level players from ECI and Bradshaw, each of the parties hired experts to help with the case. The experts opined primary on technical aspects of the bore and also financial damages.
Not credible testimony. In multiple locations within the document referenced above by QR code, there are witnesses with credibility issues. Here is what Judge Eric C. Tostrud said about:
- Bradshaw’s project manager: “His memory of events was spotty. He offered little factual detail regarding key conversations… instead falling back on general assertions… Such testimony appeared inauthentic; it consisted of answers given to reach a conclusion rather than organic, factual responses to the question asked. And his testimony on cross-examination was combative and evasive.” (¶109.d) (emphasis added)
- Bradshaw’s superintendent: “[H]is testimony was not credible. His testimony on this topic was inauthentic; his answers were cautious, and like Mr. Wanhatalo, often seemed conclusion-directed rather than genuine, factual responses to questions.” (¶109.e) (emphasis added)
- Bradshaw’s project manager (again): “…I did not find his testimony a credible basis to conclude what was said at the meeting. Regardless, his account is outnumbered by four credible witnesses.” (¶228.c) (emphasis added)
Credible testimony. The judge also acknowledged those witnesses that were credible:
- Arthur J. McGinn (ECI’s expert technical witness): “Dr. McGinn’s testimony was persuasive and credible. He was measured, direct, and thoughtful…Based on his extensive experience, I was persuaded that he had the better understanding of St. Peter Sandstone.” (¶297.a–b) (emphasis added)
- Cary Hirner (Black & Veatch, Inc. Led Tunnel Engineer): “I found Mr. Hirner’s testimony persuasive and credible. He explained his investigation and conclusions step-by-step in a direct, measured manner. And the basis for his conclusions was clear and supported.” (¶299.b) (emphasis added)
My story. I have participated in numerous depositions and each of them is preceded by a preparatory session with counsel. The first thing said is always the same: “just be truthful and honest.” That’s not to say that those deemed not credible by Judge Tostrud were not telling the truth but, I think from the quotes above many could be convinced that there maybe was not full disclosure. In the case of the credible witnesses above, they were clear communicators who let the facts fall where they did.
It’s important to know as you sit on the stand that the lawyers’ job is to pull facts from you to build their case. Just answer the question to the best of your ability and and as directly as possible. If the answer is not clear, don’t worry, the attorney will ask you again. And again. And again.
Work safe!
