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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. 10 FACTS & FINDINGS / AUGUST 2003
Witnesses Good paralegal communication and investigative skills contribute greatly to the ultimate outcome of the case. Skillful utilization of public records can be key to success as more public records (i.e., real estate deeds, license information, corporation information, etc.) are being placed on the Internet. Each state has its own Web site where state codes and statutes as well as many real estate, corporation and partnership records can be accessed. The role of legal assistants in the process of finding potential witnesses and securing sworn statements is vital. Conclusion Depending upon the type of trial—whether automated with the latest technology, or relying on traditional trial notebooks and exhibits—preparation is key to success. Trial preparation should always begin as early as possible. A paralegal’s best tools in construction defect cases are communication and organizational skills, and thoroughly understanding the process. While this article has described the skeletal anatomy of a construction defect case, there are still “muscles” and “veins” that govern the success of the case. Legal assistants are at the heart of the process. Carolyn Yellis, CLA, is a graduate of Southern California College of Business & Law where she received her paralegal certificate. She earned her CLA in 1998, and is currently a freelance paralegal. She also serves on the Advisory Board of Santa Ana College, and is in her first term as an advisor on the executive committee of the California State Bar’s Solo and Small Firm Section. She currently is Board Advisor, and formerly served two terms as president of the California Alliance of Paralegal Associations. During her first term as CAPA President, she testified before the California Assembly, Judiciary, and Appropriations Committees in support of AB 1761, which was ratified by the California Governor in September 2000. She remains active in educating the public and the legal community on how the statute affects paralegals, the legal community, and the public. IN NEED OF TRANSLATION SERVICES? One of the nation’s premier teams of attorneys and certified language professionals stands ready to help you translate legal and business documents from and into European languages. Intermark Language Services The Legal and Financial Translation Experts 2555 Cumberland Parkway Suite 295 Atlanta, GA 30339 Tel: (770) 444-3055 Fax: (770) 444-3002 E-mail: info@intermark-languages.com Visit us on the Web at: www.intermark-languages.com We know the language of law. FACTS & FINDINGS / AUGUST 2003 11
Page 2 and 3: Departments President’s Message -
Page 4 and 5: Call for Proposals 2004 Convention
Page 6 and 7: Anatomyofa Construction Paralegals
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
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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
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Page 52 and 53: & NEWS INFORMATION Phyllis L. Dunha
Page 54 and 55: & NEWS INFORMATION NORTH DAKOTA Red
Page 56 and 57: & NEWS INFORMATION Alicia L. Castil

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