In recent years it has become routine for construction projects to end up in litigation over construction or design defect claims. Because of the potential recovery, litigation has blossomed with lawyers willing to pursue claims given the amount of money at stake. It can be expensive to determine whether the claims raised are legitimate, let alone engage in full-blown litigation of the merits.
Investigating these cases can be daunting, with twenty to thirty parties in a single case. One thing to immediately consider is hiring the proper expert and to do so early enough to select one’s expert of choice. It is also important to engage the expert early enough to assist with case evaluations and strategy. While seasoned construction lawyers know what to look for, they are not experts in construction or design. The right expert can help determine what other trades may be implicated in the alleged defect, what documents to look for, who to depose and what questions to ask.
In looking for the right expert, keep in mind the type of work the insured performs. For instance, if the insured is a window installer, you would want to find someone who has dealt with window installation issues as an expert in the past. The ideal expert is not necessarily someone who has worked directly with a window installer, but one who has investigated window defects on projects. The ideal expert has a breadth of experience, but is not a “jack of all trades.” Finding someone who specializes in the specific discipline you need goes a long way to developing your defense in the case.
If your contractor is still in business, it is also recommended that they have some say in who is chosen as an expert. The project manager, superintendent, foremen and laborers may be, and likely are, experts in what they do. Do not discount the importance of the project personnel; their experience, coupled with expert testimony, is integral to defending these types of claims. More times than not, the project personnel help the expert locate and identify important documents and potential sources of documents from other players or non-parties. The project personnel may even know of a perfect expert for the situation.
In conclusion, selecting the proper expert early on in the process can go a long way to defending a construction defect claim successfully. The expert can help guide the investigation and testify in court if necessary. The factors identified in this article are important to consider in this process.