Entire Issue - National Association of Legal Assistants

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