Entire Issue - National Association of Legal Assistants

Anatomy of a Construction Defect Case
continued from page 9
In the case of intrusive testing for structural defects, the
following process should be explained to the homeowner:
1. Carpets will be covered in plastic for protection.
2. All the furniture will moved and covered with plastic.
3. The walls will be cut and inspected.
4. Structural drywall repairs will be made that day, and
an appointment will be made for texturing the walls.
5. The next day, painting will be completed.
6. Furniture will be returned to original positions.
7. If necessary, the process will be redone until the
homeowner is satisfied.
It is vital that homeowners understand this process
to avoid surprises. Watching a crew cut into a wall to
inspect plumbing, wiring, or wall-stud spacing can be a
shock unless the legal assistant exercises great care in
preparing the homeowner.
Expert Reports: The experts then provide a written report
of their findings. The information is entered into the database
prepared by the legal assistant to become a continued reference.
In some states, expert witness discovery is non-privileged,
meaning that even letters written by counsel are discoverable.
Great care should be taken in all expert communication.
Filing & Service
If the pre-litigation process did not yield the desired
results in settling the case and a lawsuit is filed, the paralegal
on the plaintiff’s side begins work on identifying whom to
name in the case. A corporate search should be performed to
identify the entities and solvency of the
sub-contractors—a suspended corporation
cannot be sued. Service of process is made
on each of the defendants either through
personal service or by publication.
The defense, as with the plaintiffs, is
busy preparing for cross complaints. The
process for the defense is much the same
as with the plaintiff’s paralegals.
Case Management Orders
Some states do not work with Case
Management Orders (CMOs), but those
that do have an advantage. Large complex
construction defect cases may have hundreds
of plaintiffs and defendants, and the
discovery process can be a nightmare if
statutory rules are followed. The following
items are usually listed in the CMO with
the dates they are due:
1. Request for production of documents
a) Includes homeowner documents consisting of
complaints, escrow documents etc.
b) Includes the insurance questionnaire for the
defendants and all associated documents such as
job files, escrow information, etc.
2. Special interrogatories
3. Request for site inspections (in addition to the
pre-litigation testing)
4. Requests for destructive testing (in addition to the
pre-litigation testing)
5. Mediation scheduling
6. Deposition schedule for homeowners
7. Deposition schedule for defendants
(“Persons Most Knowledgeable”)
8. Deposition schedule for plaintiff’s experts
9. Deposition schedule for defendant’s experts
10. Document depository location and procedures
(includes costs to be shared)
11. Name of Special Master and cost sharing
11. Trial readiness meeting (depending upon the state)
12. Date of trial (if already set by the time the CMO
is approved).
Document Depositories
& Special Masters
Documentation accumulates very quickly in construction
defect cases. It is not unusual by the end of the case to have,
literally, more than a million documents. To save money and
tons of paper, each party meets early in
the case (usually before any discovery) to
decide on a location for a document
depository. This depository is usually a
court reporting service or copy service
that acts as a third party and stores all the
documents in a single location.
As specified by the CMO, all documents
are to be deposited by certain
dates. All parties agree upon the language
and dates, and the presiding judge signs
off on it.
Even with the organization of a
CMO, there may still be conflicts that
arise between attorneys. For this reason,
a “Special Master” is chosen (and cost
shared) during the case management
phase to handle disputes pertaining to
the discovery process.
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FACTS & FINDINGS / AUGUST 2003