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 over 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? – Jennifer S., Birmingham, Ala.
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.
My only brush with litigation was with a customer 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 did not exactly match the shade of the existing woodwork in her home. She was either colorblind or 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.
Once I started writing my syndicated newspaper column and publishing columns and videos at my AsktheBuilder.com website, attorneys started approaching me to act as an expert witness 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 one sentence what’s in your future, it would be this: 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.
Raw emotion may be driving you right now because you feel assaulted having to pay hard-earned money for shoddy workmanship. That emotion can cloud your decision making. What’s more, almost every homeowner I have observed in court has 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, one with 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.
The legal process involving construction defects varies from state to state. There’s usually a very distinct timeline to the litigation process, with deadlines that must be met. It’s imperative that you discover through your own work 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 to miss a deadline.
Only a small percentage of lawsuits actually make it to a bench trial. But in my experience, when they do go to trial, lawsuits like this are won and lost by 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.
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 ironclad 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 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.
After both sides file all the expert witness reports, it’s time to bargain. Your attorney and the builder’s attorney will haggle just as you might at a yard sale over a marble paperweight with a picture of the Old Man of the Mountains 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 judgment. The builder will then have to do even more expensive legal maneuvering to 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 10 minutes of the meeting how he or she knows 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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