Construction Defect Dispute? You Need an Expert Witness

Mark Meshulam is an expert witness and consultant for construction of windows, glass and building facades.

We have actively participated in the construction landscape for over 40 years. This lengthy – and still continuing – history has been filled with a vast array of great projects. Much constructive, rewarding work has been performed. But…

Disagreements and disputes are common in construction
Disagreements and disputes are common in construction

The problem begins

There is a part of the business construction professionals don’t like to talk about: when something goes wrong. Defects, failures and disputes. It might or might not be our fault. It may or may not have been avoidable. But one thing is certain: the work environment changes radically when a dispute arises.

Construction is fraught with disagreement even under the best of circumstances. There will always be customers who demand better performance. There will always be subs seeking compensation for extra work from a limited source of funds. There will always be GCs who seek to extract every penny of perceived wrongs from offending subs. Hey, if it was easy, evetr

Sometimes when I observe the daily maneuverings and business practices that take place here in our great city, I am reminded of a National Geographic special in which the big eat the less big in the great cafeteria known as the food chain.

A humorous look at the construction food chain
A humorous look at the construction food chain

Disputes can originate at any point along the construction food chain. They can occur between Owner and GC, between Owner and Architect, between GC and subs, between subs and sub-subs. Despite the origin, disputes have a way of traveling throughout the chain and affecting even the most distant participant.

Similarly, the issues that occur at the origin of the dispute can spawn secondary issues that radiate throughout the system and can become primary.

Consider a simple hypothetical, yet common, example.

origin of the construction defect dispute

The origin

Mid project, the Owner directs the Architect to design a significant design change due to changing market conditions. He directs the GC to implement the change. Due to the implementation speed required, GC directs subs to make their corresponding changes and assess the cost later, which may be allowed by their subcontract agreement.

construction expert witness now neededThe initial effect
The subs scramble to implement the change on a timely basis but inevitably delays occur. The owner or GC refuses to recognize the validity of the delay, bringing penalty pressures to the sub.

3
The secondary effect

Meanwhile the sub gathers and presents his costs to the GC, who in turn presents these to the Owner. Delay and negotiations occur in fits and starts.

the construction defect claim develops
The back story

The Owner is under budgetary constraints with the lender and possibly also with investors, and this results in resistance to grant change orders.

construction expert witness to the rescue
The tertiary effect

The delay can affect the end-users, causing some to back out of purchase and leasing agreements, further tightening the Owner’s cash availability.

the construction expert witness can untangle the mess
The domino effect

The effect of an Owner exceeding budget can be the delay of all payments to GC and subs. If settlement regarding the delay and the cost can not be reached, a true dispute will occur.

I selected this example to illustrate how issues travel up and down the construction food chain, affecting ultimately all participants. Issues and disputes can originate from any party in the chain. With the passage of time, the issues can morph. In this example a scope change changed to a delay and cost issue, which then devolved into larger issue of project financial performance and compensation for all participants.

dominos

Now we come to the point in the story where a true construction dispute has arrived. This occurs when two or more parties can not come to an agreement. At this point, most disputes can be reduced to the fundamental element of money.

Even if disputed items appear to be categorized as delay, performance, quality or warrantee, these things can soon be reduced to most common denominator, the almighty dollar. Inevitably in disputes, when all the verbiage, justifications, counterarguments, posturing and power plays are boiled away, you have two or more parties who want money from each other, and their positions are far apart.

Breaking the impasse
Ultimately there will be pressure to settle. This pressure might come from an Owner looking to close out the job, provide lien waivers to the lender and provide warranties to end users. The pressure might come from participants who become tired of the impasse, and elect to settle for less than they feel entitled to.

Entering the legal realm
When the chasm between combatants is insurmountable, and larger guns must be brought to bear. Lien notices might be filed, and in some cases this motivates a settlement. If not, lien foreclosure (a law suit) or other types of lawsuits, such as breach of contract, can result.

legal costs can be adjudicated by a construction expert witness

Once the complaint (the lawsuit) is filed and served, a new round of activities begin to take place. The parties begin to fully realize the cost and delay they are facing if they pursue the legal course. The filing of motions and answers, the petitioning of the court for summary judgements, the appearance at status hearings, and mostly the expensive investment in discovery (the taking of depositions and the requesting/providing of documents and evidence) all loom on the horizon as large mountains to scale.

Good construction attorneys will appraise their clients of this new problem – that it will take a lot of time and money to achieve closure. This will assist clients in rethinking their approach. At this point, mediation and arbitration may be considered for their ability to speed resolution.

The Construction Expert Witness
Whatever the path, an outside expert can be useful. The construction expert witness can render an opinion regarding the validity of a claim, based not so much on law (that’s the attorney’s job), but on how the facts of the case weigh against one another and how the arguments will sound to a judge or jury. The construction expert witness will also evaluate the dispute based upon standard practices in the industry.

Expert witnesses with forensic capabilities can delve deeply into the actual construction for clues, facts and solutions.

In the facade industry, we see expert witnesses coming from either the design world, such as Architects and Engineers, or from the trades themselves. We fit the latter category and have found that our hands-on construction experience carries authority and credibility.

A credible construction defect expert witness can be a strong asset in construction disputes
A credible construction expert witness can be a strong asset in construction disputes

How we manage construction disputes
When we are involved as a construction expert witness, the assignment is challenging and stimulating. The issues can be multi-dimensional, requiring analytical thinking. We look at the issue at hand, then expand our view to encompass the greater picture, the causes, the participants and the environment in which the dispute was cultured.

Even the study of a seemingly simple window leakage issue readily expands to encompassing:

  • The Contract Documents
  • The submittals, approvals, shop drawings
  • The materials
  • The manufacturing process
  • The qualifications of the installers
  • The instructional materials
  • The installation sequence
  • The warrantee wording
  • The surrounding conditions
  • The history of the dispute
  • Site inspections
  • Forensic investigation

The expert witness can be invaluable in supporting the efforts of the attorney, where the facts of the case are embedded in the technologies of the construction trades.

In the end, an expert witness opinion is rendered and, if necessary, defended in deposition and even in court.
A credible construction expert witness can be one of the greatest allies a claimant can have.

Need an expert witness for your construction dispute?

Mark Meshulam, Chicago Window Expert, offers expert witness services
Mark Meshulam, Chicago Window Expert, offers expert witness services
No matter where you are,
contact me, Mark Meshulam,
the Chicago Window Expert
For the expert attention you deserve
Mark@ChicagoWindowExpert.com
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