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Anatomyofa Construction Paralegals are ‘Heart’ of the Process Defect Case by Carolyn Yellis, CLA Laws, procedures, ordinances, building codes and regulations vary from state to state, county to county and even city to city. But the paralegal’s role in a construction defect case is virtually universal. As in all litigation, the first factor to consider is the human factor. Whether working for an attorney representing the homeowners (plaintiffs) or the developer and subcontractors (defendants), the legal assistant’s main goal is to work in the client’s best interests. Construction defect cases are distinctive in many ways. The cases are deemed complex in many venues, and with good reason. Depending upon the size of the project, there may be hundreds of plaintiffs and defendants, and there are many cross complaints to contend with. This means the developer has to function both as the defendant and the cross complainant. The developer, formerly the defender of the subcontractors and their work, changes stripes to place blame on the workmanship of the subcontractors. It can be very confusing, and the role of the paralegal is to put it all in perspective with superior analytical and organizational skills. Since the cases involve actual construction on a parcel of real estate, real estate law plays an important part when assessing the causes of action in a complaint. On the reverse side, the defense also needs to assess those causes of action in order to determine their affirmative defenses. To best understand the process, it is important to consider both perspectives. Plaintiffs’ Perspective A beautiful home in a desirable neighborhood has finally become a reality. Escrow closes on a dream home, and life is good. Home ownership is often considered part of the American dream, but that dream can become a nightmare when problems with the house begin to appear. Water spots on the ceiling, defective electrical outlets, cracks in the walls, wet carpet, or even broken and sliding foundations are common complaints in construction defect cases. Homeowners’ complaints to the developer may go without resolution. According to the homeowners, the developer is putting band-aids on damage that needs stitches or major surgery. When there is no satisfaction in trying to deal directly with the developer, the homeowners seek the services of an attorney. Developers’ Perspective Developers are “good guys” who rise to the occasion to abate housing shortages. They draw up plans that receive approval from city, county, and state agencies. The best subcontractors are hired, jobs are created, homes in the development are selling at a record pace, and life is good. In some cases, unfortunately, when the last escrow closes, complaints from homeowners begin flooding in faster than customer service can handle. The developer tries mightily to keep the homeowners happy, but the unthinkable happens— 8 FACTS & FINDINGS / AUGUST 2003
the homeowners consult an attorney. So the process begins. It has come down to homeowner against developer and developer against subcontractors. The Paralegal’s Role Legal assistants are the key to success in these complex matters. The first crucial step by the paralegal is to meet with the client prior to the complaint being filed. Or, if representing the developer, to meet or talk with the insurance claims adjustor after the complaint is filed. This may be the single most important step in working on construction defect cases. It is extremely important to gain the confidence of the client(s). Once this confidence is solid, the legal assistant can begin preparing for trial on a firm foundation from the very start of the case. This principle applies for both the plaintiff and the defendants. Investigation of developers and homeowners is much the same, with the exception that the status of licenses and permits of the developers must be examined. Investigations and witness statements have a vital role in the success of the case. Specifics covered in the investigations are 1. Background checks 2. Involvement in other lawsuits/judgments 3. Bankruptcy 4. Criminal records 5. Status of licenses and permits (for developers) The Pre-Litigation Process Plaintiff & Developer Documentation: Regulations and codes must be checked before the complaint is filed. Some states will not allow the complaint to be filed until there is some sort of mitigation and mediation process between opposing parties. This mitigation process is usually between the plaintiff and the developer, and should be dealt with just as if a complaint had been filed. In cases where the complaints may be attributed to the subcontractor, that subcontractor may also be brought into the pre-litigation process. The paralegal gathers documentation from the client(s) and organizes it into a database. There are many database applications for this purpose, such as those by CaseSoft and Abacus. There are many issues in construction defect cases that need to be identified at this early stage. The most common issues for a cause of action include 1. Strict Liability 2. Breach of Contract 3. Breach of Implied Warranty 4. Breach of Express Warranty 5. Fraud The list of common defects can include 1. Leaking Roof 2. Defective Plumbing 3. Defective Electrical 4. Structural Defects 5. Architectural Defects 6. Civil Issues 7. Geotechnical Issues 8. Stachy Botrys (Mold Issues) The paralegal organizes the documentation received in its respective category within the database. Documentation is exchanged between opposing parties and the process begins. Expert Witnesses: Documentation is reviewed by the legal assistant who prepares an in-depth report of defects to the supervising attorney. The attorney then decides which expert will be present at the first site inspection— a “non-intrusive” inspection. The paralegal works with the experts and makes sure they have all the documentation they need to assess or defend the allegations. This relationship between the experts and the paralegal will last throughout the case. Site Inspections (Non-Intrusive Inspections): It is up to the plaintiff to prepare a schedule for site inspections. The rapport established with the client(s) by the legal assistant in the initial meeting has set the stage for cooperation from the homeowners. The plaintiff’s paralegal explains to homeowners that the developer has the right to inspect the allegations in an effort to mitigate the alleged problems. A sign-in sheet is prepared and the legal assistant oversees the site inspection process with the experts for both sides of the case. The sign-in sheet is most often prepared by the plaintiff’s paralegal, but developers also have the right to maintain their own sheet if they wish. This is an important document because it affects the testimony of the experts. If the expert claims to have been at the site all day, for example, but the sign-in sheet shows the expert showed up at 9 a.m. and left at 10 a.m., that expert’s testimony may be impeached. Destructive Testing (Intrusive Testing): Once the experts have inspected several of the homes, the developer usually asks for destructive testing. Again, it is up to the plaintiff’s legal assistant to set the schedule with the homeowners and the experts. Depending upon the number of homes to be tested, this can be an enormous task. Homeowners must be informed that a crew of people will be invading their homes for perhaps a weeklong process. continued on page 10 FACTS & FINDINGS / AUGUST 2003 9
Page 2 and 3: Departments President’s Message -
Page 4 and 5: Call for Proposals 2004 Convention
Page 8 and 9: Anatomy of a Construction Defect Ca
Page 10 and 11: Resources & Opportunities Reviewed
Page 12 and 13: Automotive Product Liability contin
Page 14 and 15: Po Windows er Can by Robert M.N. Pa
Page 16 and 17: Estimated Number of Persons Injured
Page 18 and 19: The Digital Millennium Copyright Ac
Page 20 and 21: Get ‘Wired’ for Savings by Robe
Page 22 and 23: Get ‘Wired’ for Savings continu
Page 24 and 25: y Ann Marie Verity Paris may be the
Page 26 and 27: An American Paralegal in Paris cont
Page 28 and 29: CONVENTIONSNAPSHOTS July 9-12, 2003
Page 30 and 31: CONVENTIONSNAPSHOTS NALA Board and
Page 32 and 33: Experts on the Internet continued f
Page 34 and 35: Experts on the Internet continued f
Page 36 and 37: EDUCATION A Road Worth Traveling Th
Page 38 and 39: TECHNOBITS Use the Technology Elect
Page 40 and 41: PRACTICETIPS Knowledge Really IS Po
Page 42 and 43: Practice Tips: Behold the Power of
Page 44 and 45: members demonstrates the importance
Page 46 and 47: y the United States Bankruptcy Cour
Page 48 and 49: AFFILIATESCOLUMN Making the Most of
Page 50 and 51: ility of course content and materia
Page 52 and 53: & NEWS INFORMATION Phyllis L. Dunha
Page 54 and 55: & NEWS INFORMATION NORTH DAKOTA Red
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& NEWS INFORMATION Alicia L. Castil
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