You have a sneaking suspicion something on your project isn’t right. The call comes in to the company warranty line. Most people don’t want to hear it, “the news”. There is a construction defect on the property or project. Hey maybe it is something that isn’t our fault; we can invoke the “act of god provision” in the contract? Maybe it is just a call-back to the job that really is just a misunderstanding. Maybe my house or structure isn’t really defective. Maybe we didn’t build something into our project improperly.
My guess is not many people like to hear or think there might be a problem with their structure, home, or project. I know as a contractor it is the call I dread and the call I’ve had to make when I’ve had work done on my home. Most of the time the problem can be worked out without having it escalate, who wants an attorney involved in the dispute. We all know that once we get attorneys involved it is rarely cheap. What can you do to find out if you need to call your lawyer? Below are five things to keep in mind when you’re trying to find out if there is a problem and how to go about addressing it.
- Don’t panic, there are people who are there to tell you if and what the problem is. Federal Rules of Evidence tells us
“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
California Rules of Evidence tell us:
- (a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.
Let me simplify what this says. I did pay an arm and a leg to become a lawyer. It says, that anyone can be an expert provided they have the skills and expertise to be able to add to the matter in a way that aids the court in finding truth and fact. This can be a judge in a bench trail or a jury in a jury trial. The finder of fact often doesn’t have specific training on the basis of a dispute; jurors and judges may have never heard construction speak. Because of this lawyers and courts often call on “expert witnesses” to be able to give them an impartial opinion on the reasons behind the issue. There are people like me all over the country that have specific expertise in something. In my case I am an expert in construction and after having been a remodeling and engineering contractor for a decade plus, I am able to preform procedures to quantify and compile data in order to offer an opinion on what went wrong. Don’t be fooled though, not everyone is able to do this. It takes a certain personality to have people question your work and opinions in an effort to get the expert to trip up. Don’t worry though; when you engage an expert it is par for the course and their skin is usually thick.
- You can tell them off tomorrow.
Some of the best advice I got from my Mom and Dad growing up is still top advice when you think there is a construction defect, “Once a stone is thrown you can’t stop it”. The underlying premise here is that once you start a war it is very hard to stop. If you are a homeowner that is having trouble with a contractor, or a contractor having trouble with a project client or owner or other contractor, it is always advisable to be polite and keep your wits about you. I am not saying you show your hand; only that it is easier to catch flies with honey than vinegar.
I have been in some very tense situations, one where a homeowner bought a home from another private party and felt there was not adequate disclosures of known problems with the house by the seller. I was retained to offer an opinion about the cost of the fix and how it would be accomplished. A contractor was also implicated in the matter and I was retained to offer a “Contractor Standard Of Care Opinion” to tell the parties what a reasonable contractor would have done in a similar situation. The homeowner that the suit was against was completely caught off guard when I said, “Good morning, how are you today?” It was as if they thought I was there to take their money for no reason. The reality was once I walked the property and did my investigation I found that while there were some nondisclosure issues that were known by the seller and should have been disclosed, they weren’t as bad as the initial complaint alleged.
By the parties keeping their civility and me keeping my composer we were able to avoid a lengthy and costly lawsuit. The parties to the suit commented that my expert witness report was the basis for finding common ground on the project. If they had started a war and the dialogue stopped “telling them off”, it would have gone to court and vast amounts of money would have been wasted.
- Find out the facts and try to make sense of the matter.
It is very hard to hold someone or something responsible when you don’t know what is wrong. One matter that comes to mind is a client who had water coming into their basement. California had been through a drought for a number of years, that being the time the basement was added under the structure. When the first heavy rains started, water flowed into the basement and no one knew what to do. I have specific expertise on site drainage after owning a construction business for years doing just that thing. I was called by a real property attorney I often work as expert for and was sent to the job to find out if there was a problem with the construction and who I found to be responsible for it.
I wrote a report outlining what was happening and how the water was finding its way into the house. I then drafted a repair recommendation to tell the owners and their attorneys what I thought the needed repairs were and a rough order of magnitude estimate of the cost. This gives a homeowner and their attorney the ability to know which direction they need to go. How do you find out the best treatment when you are physically sick? You go the doctor. The same is true when your house is sick. You call the building doctor. Facts in hand you can make educated decisions on how to proceed.
- Get someone who is an expert in the field and knows the law.
For those of you that read #1 you know that anyone who has sufficient expertise to help the trier of fact find the truth of the matter can be used as an expert in a dispute. What is also important to consider is if the expert speaks the relevant languages? I have seen experts technically qualified that are not able to have their work challenged and tested by examination of an adverse party. They lose their composer and say something in a way that sheds light on an issue unfairly and adverse to the truth. You need an expert who speaks law too!
It is important to retain someone that has the ability to explain in a clear and complete way what the problem is, what the solution is, and do it in a way that is impartial and within the bounds of the law. The best experts I have found are able work within their specific field of expertise and also step into the legal world with its very unique and formal procedure and nomenclature. Having an expert that is well versed in evidence law, and civil procedure as well as their expert field is invaluable.
- Have a report that gives you a full understanding before you do something drastic.
Experts generally give you a written report with their opinion. It allows you to know what is going on. Often time’s fear of the unknown is scarier than bad news. When you hire an expert witness you are able to assess where you stand. I have had contractors hire me to opine on a matter where they were clearly wrong. Based on my opinion they covered the defective work under warranty and avoided a public and lengthy trail where they would be found in the wrong. I have also been retained to defend a home inspector that was said to have missed a defect during a home inspection in a pre-purchase inspection. I wrote the opinion that it was a known defect because there was caulking in the crack to fill it. Because it was filled it was outside of his scope and the matter settled where he only had to pay $400 to the other side so they could save face. In addition I have written opinions that gave homeowners who thought their house was going to fall down, peace of mind that the problems they were having with the house were only superficial and they talked it out with the contractor.
The bottom line is this. If you engage an expert early in the dispute you can save yourself time, headache, and heartbreak. Know the facts, know the consequences and have your report to rely and bargain with.
DISCLAIMER: Let me stop here to give you the boilerplate disclaimer. Every situation in law and building is different. Do not rely on this article to make decisions on your specific situation. Every matter is different and requires that you talk to a professional. If you want to talk to me about your matter see my contact below. Nothing in this article shall be construed to create an attorney client relationship or partnership.
Dan Knight is principle at Dan Knight Construction & Plumbing and The Law Office of Daniel J. Knight. He is a third generation building contractor. Attorney, real estate broker, construction management lecturer at Cal Poly State University, adjunct professor at Cuesta Community College in San Luis Obispo, and City of San Luis Obispo Planning Commissioner.
Want more? Check out his blog www.NerdContractor.com