The Bright Line Business Law Blog

New does not mean perfect?

Realty Times - Real Estate News and Advice

In California construction defect litigation, homes are expected to remain "perfect" for 10 years. However, this article notes a practice which is highly effective in reducing the severity or eliminating construction defect lawsuits. I recommend it to all builders and subcontractors:

Cardis said builders should survey their buyers 30 days after they complete the purchase, then again at the 60 or 90-day service period, and a third time after they've been in their homes a full year. And he warned against asking yes-no questions, suggesting instead that buyers be given multiple choices or allowed to explain their feelings.

It is very hard to plausibly maintain a construction defect suit when the homeowner has had no complaints at the 30 day, 90 day and 1 year intervals. In addition, minor complaints which can balloon into a CD case can instead get resolved quickly in this follow up period instead of being allowed to fester.

California Proposition 64 Eliminates litigation abuse

California Business and Professions Code Section 17200 currently authorizes frivolous lawsits for imaginary wrongs to extort damages from small businesses including some of our clients.

Now there is an proposed initiative designed to redress that injustice. An analysis follows:

League of Women Voters California. In Depth Analysis of Prop 64. November 2, 2004 Election

If you are eligible, please vote for this initiative.

Pork Chops and Greek returns?

One of the expert companies that we use, Pete Fowler Construction Services, Inc., recently put on an outstanding presentation called "Introduction to Roofing." It was very informative, even if thached roofs are no longer common in our area. he identified most of the common roofing related defects fewquently asserted in constrcution defect litigaiton.

Pete's company takes an unusual appoach to these cases. Often, experts for a subcontracting trade simply note alleged defects in a project and explain that "some other dude did it." In criminal law this is called
the SODDI defense and it's usually not convincing unless your first two initials are "O" and "J." Pete's crew doesn't just focus on the work of the subcontracting trade they are representing. Instead they look at the whole project, identify the "mechanism of failure" whcih means that not only is that SODDI specifically identified, but how that dude did it is also demonstrated. This is extremely effective, and I really appreciate their work. Their method backfires only when they tell me my own guy did it. I hate it when that happens!

Finding that needle in a haystack: The perfect expert

Sometimes the initial search for an expert is simply overwhelming. When i'm looking for an "unusual" expert--out of state or in some esoteric area I've never used before(a situation whcihseems to occur every other week or so) I START here:

FindLaw's Legal Market Center - Experts, Mediators, Court Reporters and more!

Caveat Emptor: I don't always end up here.

Experts

One of the biggest expenses faced by litigants is the expenses of experts. Whether the matter involves medical malpractice, professional liability, construction defect or personla injury, the use of experts is almost unavoidable. I'll post much more on this subject as time goes by, but here's some initial suggestions on using cost effective experts.

1. Analyze your case to determine what expert opinion will be needed.

2. Are there any free experts available? Surprisingly, this answer is often "yes." I do a lot of real estate and construction work. The real estate brokers and the site superintendents employed by my own often make great experts. Often protoges and mentors of my health care clients also make great experts. Treatign physicicans can be experts and so can technicians and repair contractors. Some cases involve issues important to trade associations, who will provide experts. There are pitfalls in using "free experts" but these should be considered ona cost benefit basis.

2. Next, inspect the expert's qualificiations to see if the expert is actually qualified to give the opinions that need to be given.

3. Work with the expert for a scope of work section of an expert's written retainer/contract. This is important to give the expert an idea of what's needed, prevents misunderstandings, and is the basis for the next step:

4. Prepare a budget with expert and client/claims adjuster agreement and input.

5. If it's necessary to go over budget, be sure to get client and expert agreement before additional work is undertaken.

6. It is usually much cheaper to arange for necessay documents and test results to be delivered to the expert than to have the expert obtain them.

7. Nothing saves costs like frequent communications regarding goals and progress. Don't ignore your experts

I repeat: this is the beginning of a series of posts discussing experts. The economical use of experts is critical to the success of a case. There's much more to come.

My Philosophy-why the "bright line?"

This is the first in a series of discussion of legal topics of interest to insurers and business executives—our firm’s clients.

In representing clients on behalf of Smith, Smith & McFaul I sometimes get carried away and gripe, complain and moan about the status of legal uncertainties faced by my clients. Sometimes the facts are uncertain, sometimes the law is. I intend to comment on cases, statutes and procedures that promote certainty in the law—applaud it when I find it and criticize legal developments that promote uncertainty. It’s intended to be informative and thought provoking.

The “Bright Line” is any legal principle that is so certain that every day citizens and businessmen can plan their activities confident of the legal standards that apply. Certainty in the application of the law allows for predictability and better future planning for businesses. The results are more productivity, more economical legal services and a healthier business environment.

A good example of a “Bright Line” test is a well crafted statute of limitations. For a very long time, California had a ONE YEAR statute of limitations for personal injury actions based on negligence. There are argumetns for shorter and longer ones. Recently, the legislature approved, and the governor has signed, a TWO YEAR STATUTE of limitations. The change has resulted in uncertainty causing confusion to insurers and defendants. Is the statue retroactive? Does it revive actions already expired under the one year statute? No, it doesn't but it took an unnecessary court case to find out. Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App4th 1026, 9 Cal.Rptr.3d 767.