Q&A / 

Construction Defect Litigation

DEAR TIM: My new house is full of defects. The builder will not fix them. Fortunately, I was able to hold back lots of money and now he's suing me. I've never had to hire an attorney nor have I ever been involved in any litigation, much less one about construction defects. The defects are obvious and some are very serious. This seems like a no brainer and I'll win hands down. What advice can you offer and have you ever been involved in any construction defect lawsuits in any capacity? Jennifer S., Birmingham, AL

DEAR JENNIFER: I'm very sorry to hear about your dilemma. The sad thing is that houses with construction defects seem to be far more plentiful than those without them. High quality workmanship in the marketplace seems to be more of a recommendation than a common practice.

I'm very proud to say that in all my years of business as a custom home builder and a remodeler, I was never sued by a homeowner. I strived to always deliver the best quality that I could on every job.

My only brush up with the law was with a customer from Hades late in my building career. The American Institute of Architects contract I signed with her stipulated binding arbitration and she requested it because she felt the stain color on the solid poplar woodwork and doors on her job were not the exact perfect shade to match the existing woodwork in her home. She was either color-blind, wicked or both. Early in the job she and I crossed swords, and I'm convinced she decided to make my life miserable. Believe me, she did.

This wood railing rotted out in less than eight years. It’s just one of many construction defects in this new home. Photo credit: Tim Carter

This wood railing rotted out in less than eight years. It’s just one of many construction defects in this new home. Photo credit: Tim Carter

Once I started writing my syndicated newspaper column and publishing columns and videos at my AsktheBuilder.com website, I started to get contacted by attorneys to perform expert witness work in construction defect cases. I still do that type of work and just recently arrived home from a court date in Antigua involving a lawsuit about defects in the home of the Brazilian Ambassador.

I'd say I've got lots of experience with respect to how the legal system works and what you're facing. If I had to tell you in fifty words what's in your future I'd say: The only winners will be the attorneys and no matter how strong your facts and case may be, there's no guarantee you'll win. I realize that's not encouraging.

The legal process involving construction defects is different in each state of the USA. The attorneys in each state have to follow a set of rules about how lawsuits are processed and litigated. There's usually a very distinct timeline and pathway with deadlines that must be followed and met. It's imperative that you discover through work on your own exactly what the steps are, what the timeline is and what can happen if your attorney misses a deadline or fails to get permission from the court if it's required when a deadline is missed.

The raw emotion that's driving you right now because you feel assaulted having to pay hard-earned after-tax money for shoddy workmanship can cloud your decision-making process. What's more almost every homeowner I ever represented as an expert witness placed all their trust and hope in their attorney.

Guess what? If you think there are bad contractors out there, wait until you hire an attorney. In every profession there are players that have poor skills, lack of attention to detail, and a poor understanding of the science and facts about your case. It's your job to hire the best attorney that can prove to you she or he has a proven track record of winning construction defect lawsuits. The last thing you want to be is a lab rat for some attorney that's never really worked a case similar to yours.

In my experience, lawsuits like this are won and lost on the expert witnesses. The judge and juries use the reports and testimony of these people to try to determine who's at fault in a lawsuit. What's more, only a small percentage of lawsuits actually make it to a bench trial. The expert witness reports and findings are like playing cards in an expensive game of poker.

If you hire a fantastic expert witness that produces an iron-clad report listing all of the defects in your job connecting them back to building code violations and/or failures to install products as stipulated by the written instructions from manufacturers, you're usually holding a royal flush in your hand. That's a hard hand to beat. You do not want a report that is a summary of subjective findings about the quality of workmanship. That's useless information that will not help you win.

Once each side files all the expert witness reports, then it's time to bargain. Your attorney and the builder's attorney start to haggle just as you might at a yard sale over that marble paperweight with a picture of the Old Man of the Mountains NH state symbol on it. Your attorney must have the attitude of a bear that just woke up from five months of hibernation. Her or his motto should be: Take No Prisoners.

Here's the most important question you need to ask the attorney you're thinking of hiring: "If we lose the lawsuit, what does the builder get?" The answer, in most states, is a judgement. The builder will then have to do even more expensive legal maneuvering to eventually get you to pay.

The same is true, in most states, if you're trying to sue anyone for money. Don't think for a minute that when the judge's gavel hits the wood block that the person holding the money in a case is immediately forced to write the winner a check. Always ask the attorney you're hiring in the first ten minutes of the meeting how you know the money you're after exists. Why go through months of litigation to only discover after you win there's no pot of gold at the end of the rainbow.

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