The Construction Expert Industry: New Developments
As necessity is the mother invention, an entire industry has been spawned by the growing field of construction defects law. Construction defects involve an enormous set of circumstances, including actual or imagined construction defects, deviation from what the industry considers the standard of care, and design defects, which relate to the specifications.
Hundreds if not thousands of lawsuits have been filed in an effort to impose penalties on builders and developers who may have constructed buildings in violation of building codes or standards of practice. This has created a growing need for construction experts who can write cogent reports on the facts of the case, can see the issues clearly and can testify in a professional, persuasive fashion.
One of the greatest problems with experts in general is that the more they know about their specialty, the more they tend to forget whom they are working for. In other words, experts often address issues not germane to their clients cases, instead allowing the issues to be defined by the opposition.
Knowing their specialty so well, experts sometimes want to tell everything they know in order to show their mastery of the subject, instead of addressing only the issues that are pertinent. Knowing when enough is enough is fast becoming a rare commodity among the expert community.
This is especially true of plaintiff’s experts, who, by trying to touch on all the important issues, frequently make a simple case very complicated. With the best intentions on the client’s behalf, they may testify on non-issues and even false issues., When facts are bent, astute opposing counsel, with the aid of their own expert witnesses, can nearly always impeach such unfocused testimony in deposition or a trial.
It is now common for attorneys to have degrees or experience in engineering, architecture or other construction-related areas in order to enable them to cope with the specialized knowledge of construction experts.
Some experts command fees that are more than twice the hourly rate of the construction lawyers who hire them; many experts have 20 years or more of practical experience. Paying for top experts in the field is often well worth it, because experts can often make or break a case.
Most experts rely on testing laboratories that test and analyze soils, concrete, wood, plaster, stucco, roofing and piping. These labs can ascertain how much water was used in the stucco mix and how long the process of hydration took before it was completed – information that forensic experts need in order to testify with assurance that the stucco can or cannot perform in the way the manufacturer intended it to.
Testing labs can tell the temperature of the hot tar used by a roofer many years previously when the built-up roof was applied – a measurement that can show the adhesive properties of various roofing components and can prove whether or not the roof was installed appropriately to comply with the manufacturer’s specifications.
In today’s construction industry, wise developers have begun to memorialize the day-to-day progress of buildings under construction through the use of both video and still photography. The photography alone should cause builders to scrutinize the quality of the job progress, with special emphasis on the construction elements that will be covered up by later work.
Unfortunately, few developers are inclined to use the services of forensic construction experts during the actual construction phase. Instead, they usually prefer to rely on the abilities of their on-site superintendent. The feeling among many construction experts is “Pay me now to help protect you, or pay me later to help defend you” – after a lawsuit has been filed. Either way, the construction experts gets paid.
On the defense side, the insurance carriers pick up the tab. They seldom pay quickly, but they do pay. Although, insurance carriers like to win, they will nearly always settle for a reasonable amount.
Is the construction-expert industry real, and is it here to stay? Considering the large sums of money involved, both for the plaintiffs and the defense, the answer to both question is yes. One positive consequence of this development is that, at the behest of their insurance carriers, builders are performing a better job of construction. They are taking greater care to follow the blueprints more carefully; when they do deviate, they are more careful to properly document the reason for their changes.
There is no substitute for intelligently applied experience – because good judgment comes from experience, while experience comes from bad judgment. In order to remain on top of the developments in this expanding and rapidly changing field, counsel in construction cases must be able to rely on highly experienced experts.