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Excerpted from Verdicts & Settlements
Verdicts & Settlements (front page), December 12, 1997

In Construction Cases,
Beware the Hired Gun


By Michael Solender


Hired guns abound in any field where experts are required. There are expert witnesses, and there are experts who are witnesses, and then again there are witnesses who are experts. Where do you draw the line, and where is the difference, if there is one?

The true construction expert should be hired to examine the evidence that caused the dispute. As such, the expert is supposed to truthfully serve the courts by supplying information to counsel so as to enable a judge, a jury or an arbitrator to make a fair determination of the issues involved.

The best experts, for purposes of depositions, written reports and courtroom testimony, are those who have the ability to take complicated and sometimes arcane facts and reduce them down to simple laymen's terms. The object is not to talk down to the listener but merely to communicate objectively. Simplicity, when carried to extremes, sometimes becomes eloquence.

Of course, experts on either side of a dispute can have honest differences of opinion; this is what often becomes the core of the case. Honesty notwithstanding, the expert is not required to help make a case for the opposing side. He should concentrate his efforts on developing issues that will help his client's case.

All too often, counsel tries to find the hired gun, the person with impeccable academic credentials, instead of looking for true professionals with a good practical forensic history who will perform the required work in order to render an unbiased opinion. Hired guns may adjust the facts of a case to suit the client's point of view, and, sadly, they may get away with it.

Some experts trade in their integrity for filthy lucre. Others may be quite honest in their opinions, but outside pressures, such as limited budgets and time constraints, may come between them and their work. This can lead to incomplete investigation or research into the case; for example, the expert may not read all the depositions that contain important forensic information, or may not do a comprehensive examination of the plans and specifications.

An expert witness' lack of appropriate understanding of all the facts can be more damaging than the best effort of the opposing side's hired gun. The expert must, where appropriate, inform counsel of any budgetary shortfall that could prevent.

Sometimes there are real construction problems that do require expensive fixes, but such cases are in the minority of the courts complete exploration of the forensic facts required to properly evaluate all the pertinent issues.

The hired gun in a construction case may well recommend a "fix" that would cost more than complete demolition and reconstruction of the project from the ground up. When huge judgments are rendered, often the only work done to the project is application of a coat of paint to the exterior. Sometimes there are real construction problems that do require expensive fixes, but such cases are in the minority in the courts.

A true forensic construction expert will not bend the facts to suit his cause, because he knows that often on cross-examination these "bends. can be fatal to the client's case. The true expert will probe deeply to acquire all the information needed to counteract the hired gun's "bent" facts and provide the qualified evidence that enables counsel to sway the trier of fact in his or her favor.

Simple differences among experts in any field are common, but in construction forensics the truth is often easy to prove if one delves into the subject. In a recent construction-cost breakdown of certain alleged job deficiencies an extrapolation of the replacement cost of large timbers worked out to be over $2,500 per thousand board-feet. A quick call to a couple of lumber yards indicated that such lumber could be readily purchased at $960 per thousand board-feet. Further examination by a structural engineer of the structural elements in place revealed that the existing timbers were mistakenly oversized in the first place and didn't require replacing at all.

Another hired gun stated in deposition that plumbing problems found on the job could be attributed to the expansion and contraction of the hot water line buried within the walls of the building. But he failed to carefully ascertain the actual facts of the plumbing problem. Tightly fastening joists and studs of the plumbing supply lines without letting them move slightly is very often the cause of plumbing leaks. In this case, however, the hot water was on a loop coupled to a recirculating pump - which, though small, could be easily seen at the base of the water heater. The device kept the hot water circulating all the time so as to supply hot water on immediate demand. Thus, the hot water pipe was confinuously at the same temperature as the hot water; it could not expand or contract.

Even the best generalist construction expert cannot know everything about construction and its numerous specialties and subspecialties. Experienced forensic experts know their limitations; they know when to bring in qualified specialists to assist on issues they themselves are uncertain about. When issues arise about which the expert is no expert, it is imperative that this information be supplied to counsel. In no event should the expert set himself up to opine on issues beyond his expertise.

Above all, complete honesty must be maintained with counsel concerning the forensic issues of the case. When one doesn't have much experience, it is very likely that one will get a great deal of it before long.


MORE ARTICLES:

- THE CONSTRUCTION-EXPERT INDUSTRY: NEW DEVELOPMENTS

- CONSTRUCTION EXPERT CAN BUILD, OR DESTROY, A CASE

- EXPERTS CAN RESOLVE THE CONSTRUCTION CONUNDRUM
   Standard Construction Seldom Is Really Standard

- IN CONSTRUCTION CASES, BEWARE THE HIRED GUN

- THE COMPOUND CONSEQUENCE OF ONE SMALL
   DISCERNABLE LEAK INTO THE BUILDING ENVELOPE

- THE PANDORA'S BOX OF WATER INTRUSION LITIGATION

- CONSTRUCTION DEFECTS:
  How To Avoid the 'Big Hit' And Costly Litigation

- BUILDING A REMEDY

- WATER TORTURE

- THE WATCHER
   A third party may be helpful in monitoring the expert when figuring
   the cost of repairs

- KNOW-HOW
   A general contractor should have knowledge in related
construction areas to be effective as an expert witness

- EXPERT EASE
  OPINION: Construction defect experts provide lists of failures in
  preparation for litigation, and counsel must verify reports for accuracy

- MAKE READY
  Properly prepared expert witnesses will save both time and money.

- ON THE WATCH

- THE NUMBERS


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