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

Make Ready

Properly prepared expert witnesses will save both time and money.
To be effective, most witnesses should visit the job site.

By Michael Solender

In construction litigation, the expert witness is of paramount importance to the attomeys. The various experts, whose opinions may be in question, don't all need to visit the job site to express the opinions. Some experts such as cost estimators and laboratory personnel generally rely on other experts to define their scope of work and testimony. But it is still a good idea for cost estimators to visit the job site to evaluate the general quality of the construction, terrain and accessibility. These three circumstances are important elements in the general evaluation of the costs involved for any required remediation.

Those experts who examine the physical evidence at the construction site, first must concentrate their efforts on the actual examination of the structure's material conditions; whether they are working for the plaintiff or defense, each expert should have his or her role detailed.

Among plaintiffs' experts it has become an accepted practice to go fishing" for defects. Without this fishing technique, many serious construction defects may go undetected. Because the first defect found at the surface is often just the tip of the iceberg, this is also where an astute expert, with the aid of a good forensic team, can locate numerous defects that were buried in the ceilings and walls -- and probably previously unknown. These formerly undetected defects often involve life-safety issues such as missing shear elements, structural hardware or fire safing, and very often they also involve other items that include elements with consequential damages.

Defense experts must be encouraged to stay within the scope of the plaintiffs experts' outline of defects. It is too easy, when looking for defects, to go beyond the plaintiffs scope of repairs and thus expose the case to extra repair expense.

The language in most insurance policies covering construction defects generally limits the coverage to those incidents in which the insured's work damaged another element of const:ruction or fumishing, causing consequential damages. Therefore, when searching for consequential damages, the first place to look is in an area where water can intrude into the building envelope, such as from the roof, door or window.

In the case of roofs, water problems generally occur at sheet-metal transitions from the roof to sheet metal, roof drains and scuppers, stucco or siding. In the case of windows, the water intrusion problems generally arise from flashing and comer leaks. It is imperative to physically water test the windows utilizing an American Society for Testing and Materials testing procedure to prove the manner in which the water is entering the building envelope. Those who decline to water test stand to lose any arguments they make at mediation, arbitration or trial, when countered by other experts who properly performed their testing procedures.

It is imperative to not only use the right expert for opining on these potentially defective elements, but counsel should provide clear arid concise guidance for the expert regarding the extent and purpose of the investigation. This process sounds very simple. But without this appropriate guidance, the employing attorney may receive more information than he or she wanted, needed or expected.

How does one provide the proper guidance to the expert? For most attorneys this is actually an impossible task, because often they have neither the appropriate experience in construction issues or the time required to train for this particular expertise. When this condition occurs, it is time to hire the general forensic expert who has the appropriate experience and knows how to handle the entire expert forensic-construction crew. This expert will also coordinate the preparation of the expert reports, the cost breakdown of repairs as well as the preparation of his or her master report that should embody the other expert. s salient points of contention.

In order to properly prepare the experts for deposition and trial in a construction-defect case, a number of issues must be resolved. First, what is the particular expert's precise role in the case, and what are the limitations of the expected testimony? Many attorneys allow their experts too much latitude, expecting the same type of professionalism from their expects as they would expect to obtain from a legal colleague. Few practicing attorneys would call themselves "expert" until they have either many years of practice or receive special crederitials. But anyone with a little knowledge of construction can call himself or herself an expert and that is often a large part of the problem.

Once the expert's role has been established and the construction project appropriately physically manned, the preparation of the expert can begin for the deposition. Each issue must be strategically analyzed. This effort allows the attorney to properly explore the expert's opinion on the range of questions that may be posed by opposing counsel. Without this basic understanding. the deponent's lawyer will be placed in the position of having to miss objections too often, causing the expert to review and study more issues than actually needed. When the experts role is properly defined by the employing attorney, the expert can concentrate on the selected issues, thereby saving time and avoiding needless expense.

The well-prepared construction expert can be of immense assistance to the attorney in a construction-defect case and can often aid in the settlement of disputes, thus saving money for both sides. The competent expert will endorse a scope of repair to the client's advantage, the cost of which is contained in the experts report. The skillful litigator realizes that in the end it is generally the money issues that drive the outcome of the case.

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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