Presenting a live 90-minute webinar with interactive Q&A Multi-Party Construction Defect Litigation Managing Discovery, Allocating Liability and Damages, Avoiding Ethical Pitfalls TUES DAY, MARCH 6, 2012 1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific Today’s faculty features: Eric A. Grasberger, Partner, The Development Law Group, Construction & Design S ection, Stoel Rives , Portland, Ore. R. Douglas Rees, S hareholder, Cooper & Scully , Dallas Russell Clinage, Goins Underkofler Crawford & Langdon , Dallas The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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MULTI-PARTY CONSTRUCTION DEFECT LITIGATION (Webinar by Strafford Publications, Inc.) Key Challenges in Plaintiffing The Multi-Party Defect Case Presented By: Eric A. Grasberger 5 Multi-Party Construction Defect Litigation: Key Tuesday, March 6, 2012 • Portland, Oregon Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
I. INTAKE a. Initial analysis of merits i. Nature of defects (defects v. damages) (visibility) (actual or theoretical) ii. Verification of defects and damages iii. Nature of Plaintiff litigant (business v. public agency v. individual) iv. Likelihood of funds to pay damages (insurance, bond, deep pockets) v. Dispositive defenses (statute of limitations, limitations of liability, etc.) vi. Attorney fee recoverability 6 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
I. INTAKE cont. Alerts to Threats in Europe, 2011 ALERTS TO THREATS IN 2011 EUROPE : BY JOHN CLEESE The English are feeling the pinch in relation to recent events in Libya and have therefore raised their security level from “Miffed” to “Peeved.” Soon, though, security levels may be raised yet again to “Irritated” or even “A Bit Cross.” The English have not been “A Bit Cross” since the blitz in 1940 when tea supplies nearly ran out. Terrorists have been re-categorized from “Tiresome” to “A Bloody Nuisance.” The last time the British issued a “Bloody Nuisance” warning level was in 1588, when threatened by the Spanish Armada. The Scots have raised their threat level from “Pissed Off” to “Let’s get the Bastards.” They don’t have any other levels. This is the reason they have been used on the front line of the British army for the last 300 years. The French government announced yesterday that it has raised its terror alert level from “Run” to “Hide.” The only two higher levels in France are “Collaborate” and “Surrender.” The rise was precipitated by a recent fire that destroyed France’s white flag factory, effectively paralyzing the country’s military capability. 7 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
I. INTAKE cont. Italy has increased the alert level from “Shout Loudly and Excitedly” to “Elaborate Military Posturing.” Two more levels remain: “Ineffective Combat Operations” and “Change Sides.” The Germans have increased their alert state from “Disdainful Arrogance” to “Dress in Uniform and Sing Marching Songs.” They also have two higher levels: “Invade a Neighbor” and “Lose.” Belgians, on the other hand, are all on holiday as usual; the only threat they are worried about is NATO pulling out of Brussels. The Spanish are all excited to see their new submarines ready to deploy. These beautifully designed subs have glass bottoms so the new Spanish navy can get a really good look at the old Spanish navy. Australia, meanwhile, has raised its security level from “No worries” to “She’ll be alright, Mate.” Two more escalation levels remain: “Crikey! I think we’ll need to cancel the barbie this weekend!” and “The barbie is canceled.” So far no situation has ever warranted use of the final escalation level. – John Cleese – British writer, actor and tall person 8 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
I. INTAKE cont. b. Client expectations i. Funding the case (hourly fee, contingency fee or other) ii. Duration of case iii. Net recovery scenarios 9 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
II. IDENTIFYING DEFENDANTS a. Scope issues – who did what? (Owner has a knowledge gap) b. Statute of limitations issues c. Contractual limitation clauses – getting around them d. Contract v. tort issues (economic loss doctrine) e. Tolling v. suing 10 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
III. INVESTIGATION a. Know state rulings regarding extrapolation of evidence b. Know state rulings on spoliation of evidence c. Selecting number and location of openings d. Notice to defendants (usually per Case Management Order) e. Site visit agreements (Exhibit 1) 11 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
III. INVESTIGATION cont. a. Know local trends regarding extrapolation of evidence b. Know local rulings on spoliation of evidence c. Selecting number and location of openings d. Notice to Defendants (per Case Management Order) e. Site visit agreements (Exhibit 1) f. Sample evidence gathering plan (Exhibit 2) 12 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
III. INVESTIGATION cont. g. Multiple experts? i. Forensic architect (usually for envelope or general expert lead) ii. Roofing consultant iii. Structural engineer iv. Mechanical engineer v. Geotechnical engineer vi. Civil engineer vii. Damages expert (accountant, real estate broker, etc.) 13 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
IV. DISCOVERY a. Electronic discovery i. Must be conservatively managed and budgeted ii. Effort and protocols must be reciprocal b. Hard paper files c. Deposition issues d. Subpoenas e. Contacting ex-employees, laborers, etc. 14 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
V. TRIAL a. Where’s the beef? i. Juries, judges and arbitrators want photos and physical evidence first ii. Descriptions of how it happened come second iii. Blame comes third (see Section VI “Allocating Damages) b. Show me the money! i. Repair costs: full v. partial repair ii. Repair costs: estimates v. hard bids iii. Lost revenues/profits/stigma/market value iv. Employee time v. Investigative v. expert time vi. Attorney fees 15 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
V. TRIAL cont. c. Embrace technology i. Demonstrative impact ii. Shortens learning curve iii. Electronic exhibits speed up trial time 16 Multi-Party Construction Defect Litigation: Key Challenges in Plaintiffing the Multi-Party Defect Case Tuesday, March 6, 2012 • Portland, Oregon
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