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Excerpted from Verdicts & Settlements
Verdicts & Settlements (front page), May 12, 1995

"EXPERTS CAN RESOLVE THE
CONSTRUCTION CONUNDRUM:

Standard Construction Seldom Is Really Standard"

By Michael Solender


Construction, unless factory pre-fabricated, is a custom event. In other words, standard construction is seldom standard; in fact, 10 houses built side-by-side utilizing the same set of plans all will turn out slightly different from each other. That's because most construction elements are fabricated by hand at the job site by many different craftsmen, who often interpret plans differently from each other. Indeed, the same craftsman will have a hard time duplicating that same plan next door one week later. But even if he performs his portion of the work identically, the odds against another tradesman performing his portion exactly in duplication are enormous.

So eventually we arrive at a completed building, but one different from any other structure in the world. Were the plans and specifications followed? Probably. But exactly? Never. One must consider that most construction is performed by the low bidder, who can only make a profit by the speedy completion of a contract with few delays for corrections. In fact, it is safe to say that the larger the job, the more likely it is that it will be awarded to the lowest bidder.

With 30 to 40 different sub-cons tractors at work on a typical construction job, many of whom either can't or won't follow the plans exactly, each sub tends to place the burden of blame for any construction problems that arise, with other sub-contractors. When they don't, the attorneys will. To aid in this, the astute attorney often will bring in a construction expert to help document the dispute - thus providing a jump start on a potentially successful settlement.

Many construction attorneys achieve their best resolution, however, by employing the construction expert who can understand the issues well enough to take the opposing counsel's expert's reports and poke the appropriate holes in them. This, of course, provides in a way, a double foundation for the defense's arguments: One, the foundation of the refutable plaintiff expert's reports, and two, the case arguendo, of the defense experts, built upon the corpse of the plaintiffs' arguments.

During construction, disputes between the crafts, the constractor and the owner often place additional pressures on critical construction schedules, which can exacerbate both tempers and costs as well as tending to impair construction quality. Is it any wonder then that often construction elements fail to perform in the way they were intended? There are also many cases of architectural plans that are prepared with errors both as to design as well as engineering. Most of these plans carry an admonition to the bidding contractor or sub-contractor to the effect that each contractor shall obtain all necessary permits and pass all building department inspections, but that still doesn't let the architect off the hook.

It is not to be expected for contractors to know every aspect of the Unified Building Code. Therefore, when a construction element is incorrectly drawn or specified, most contractors will build it that way. They in turn rely on their bid proposal and contract, which generally reads, "As per plans and specifications." Thus do the construction documents become a blue-print for litigation and documents that the skillful counsel can often use to their advantage with telling effect.

Neverless the unfortunate owner is often caught in the middle as he too often relies upon the building department to protect his ignorance. Unfortunately, the building inspectors have a very crowded docket, sometimes each having as many as 150 construction projects to keep tabs on and on which to perform inspections. These overworked people often miss important construction deficiencies such as nailing schedules, required slope to drain, waterproofing elements and installed steel hardware, such as lag bolts and hold-downs. They don't have sufficient time to act as job superintendents, simply because they can't stand there and watch the work in progress. Of course if they did, there would probably be far less grounds for litigation and most experts' time would be spent working on slip-and-fall cases.

Because of the many overlapping subtrades on any construction job, when th destructive testing is performed, it is imperative that the opposition's construction expert be on site to observe how the findings were made and documented. It is often much easier to punch holes in the opposition's report when your expert was at the site watching the report being developed.

Since the January earthquake I have crawled through the wreckage of scores of badly damaged and destroyed structures in an effort to determine the root cause of the structures' failure. With more than 40 years in this business, working at first with the tools, then as a construction superintendent, then as a general contractor, later as a developer and now as a construction expert witness and consultant, I was surprised to find as I crawled my way through the construction debris, just how little I could actually see.

It is therefore of vital importance that attorneys representing such cases have their construction experts on site during the uncovering of important construction connections (to unpeel the onion, as it were) when demolishing or retrofiting the damaged structure. A five-penny sinker nail is not much different from a four-penny cooler nail when installed, until you pull it, since the holding power of the two are miles apart from an engineering point of view.

From a strictly legal point of view, a construction site is so often an enigma wrapped in a conundrum. To solve the conundrum and unwrap the enigma, a cursory look is just not enough.


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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