Working With Construction Experts in Complex Litigation

Finding the right construction expert for defect and workmanship claims can be difficult for attorneys without a specialty in construction. Attorneys tend to retain engineers or architects as experts because, like attorneys, they are degreed and licensed. However, this tactic can significantly narrow the field of candidates by disqualifying some of the best resources.

Another reason attorneys default to architects is because architects routinely inspect tradesmen’s work quality for approval or rejection. A tradesman, however, would be at least equally capable as an architect to render an opinion on defective workmanship. Just as architects provide expert opinions on defective work, so can many tradesmen testify on the nature of architectural errors and omissions that contribute to a given defect. Moreover, they can do so as well or better as any architect.

In other words, the impulse to automatically select an architect as a construction expert is misguided. It is a vestige of the old stereotype that architects are more educated and sophisticated than builders.

Many attorneys don’t have the precise knowledge required to understand the complex science of defects, especially when they occur at higher levels of luxury such as custom high-end residential construction. The same can be said of mediators and arbitrators who may be unfamiliar with ultra-high-end work. This unfamiliarity can prove problematic, as it may preclude the reliability of the construction expert. The subjective nature and lack of consensus regarding what constitutes high quality further compounds the problem. It is therefore necessary to establish the value of a construction dollar on each distinct project.

The Almighty Construction Dollar

Every project has a design vision that is meant to set the bar for quality. The level of quality defined in design documentation is what determines the value of a construction dollar on a project. On some types of construction, quality levels can be ascertained from the price per square foot. This range is wide for high-end construction because no two architects will measure quality the same way.

An architect less experienced in high-end construction is more likely to under-design for his clients than a seasoned high-end architect, simply because his concept of high-end is limited. This architect will not be sophisticated enough to make subtle adjustments to conform to his clients’ design intent. Unfortunately, an architect’s lack of experience is often made apparent only after the costly infrastructure is installed, when there is little or no time left to adjust.

“Boutique” architects designing ultra-high-end projects are also often unreliable in terms of the design integrity and the cost to build their projects. The same is true of high-end contractors. Both situations can result in defect complaints.

It is up to the attorney to choose the right construction expert for each case. The attorney should have at least a basic understanding of what makes high-end residential construction litigation so different from all other construction litigation. Only then can he or she make the most informed decision and choose the right expert for the case.

Luxury: Custom or off the Rack

Luxury residential construction is not the same as custom high-end residential construction. Both niches are in the top price tier— however, luxury construction is mostly standardized to keep construction schedules moving forward and defects to a minimum. In modern parlance luxury construction refers to projects such as Modernist glass tower condominiums, in which interiors are designed by boutique architects and interior designers. In other words the units all receive the same interior treatment. There is little time or interest in customizing luxury developer work, as customizations simply slow down the cycle.

Defect claims are thus unusual in luxury residential development. When it comes to custom high-end residential construction on the other hand, designers and architects are tasked with creating a unique design according to each client’s budget and vision. That may sound simple, but in reality can be a long, drawn out, and tedious process. The level of scrutiny is considerably higher in custom high-end residential construction than it is in developer work.

Moreover, the timeline from design through build is considerably longer in custom high-end residential construction than in the developer market, because custom work invariably requires an extended design and development window before construction drawings can begin. Production and installation also takes longer.

For example, as a developer I need about 16 weeks to turn around a typical two-bedroom unit in an eighteen-story condo. Because all units have established construction drawings and pre-orders for standard materials, the design and development period is significantly reduced. By comparison, a similar gut-renovation for a custom high-end renovation might have a 12-month design window, and 12 to 18-month construction window.

In developer construction, architects and condominium buyers’ interaction is limited. Building custom homes, on the other hand, can best be described as a short, stormy, three-way marriage between the boutique architect, the well-heeled, and the contractor. Such projects are often fraught with indecision, lack of documentation, and persistent change orders. I believe that the more personal a construction contractual relationship becomes, the higher the chance of conflict. These circumstances describe the majority of cases in which I have been involved.

Your Construction Expert

The trouble with finding experts on this topic is that high-end residential construction projects typically involve five or ten trades. Therefore, defects can arise from any one of these trades and are most often a systemic result of several factors in combination. Depending on the value of each component of the claim, you might seek an expert who specializes in the area where the most substantial claims lie, rather than try to find a construction expert for every condition.

Why are defects often systemic? Because the general contractor is typically responsible for hiring craftsmen with the appropriate skill-level for a given project. The contractor determines what skill-level is appropriate, and builds the project based on that rubric. If it turns out that the general skill-level of the tradesmen he hires is below standards, it will be evident in most of the visible work— particularly, all finish and cabinetry trades. It will also be evident behind the walls and ceilings.

Why would a contractor endeavor to build something of a lesser quality than desired by the owner? Sometimes, he does so inadvertently— he may be ignorant, incapable, or inexperienced in the level of workmanship expected of him. The contractor may honestly believe he can deliver high-level work, or have a different conception of what it should look like. Or he may simply be trying to maximize his profit by skimping on lower-paid, unskilled tradesmen. The latter circumstance is considered unscrupulous business practice.

Specialization

Not construction all experts are created equal. Construction experts tend to be specialized— if you want an opinion on a structural, electrical, or plumbing claim for example, you would seek an expert in his respective calling who may not necessarily be an engineer. Equally, an expert in a trade such as woodworking or ornamental iron can typically assess architectural defects within their bailiwick, and they may appear to be in the best position to do so. However, this does not guarantee they will make a good witness.

A construction expert may have a specialty, or endeavor to be a more general expert. In my experience, a construction expert should never offer opinions on matters for which he or she has little or no practical exposure. Turning away work is a something few experts do or can afford to do, which is one reason why so many experts practice outside their element.

Do Architects Make Better Experts than Trade-Experts?

Architects have also been known to provide construction expert witness services to support defect claims. Some are better at it than others. Generally speaking, the construction industry does not welcome architects’ presence in the defect construction expert market. This stems partly from the fact that few architects have actually ‘worked the tools’— a prerequisite to expertise in means-and-methods. Insight to the potentially comprehensive nature of a given defect requires practical experience. In other words, an architect may be able to identify the defect, but due to his limited technical prowess he will encounter difficulty demonstrating cause, impact, or the cost of remediation. For this reason architects with little or no field experience bring less to the table than a seasoned trade expert.

Trade experts also tend to have more experience than architects when it comes to quantity and diversity of projects. For example, over the course of twenty years a project architect may have been involved with three of his own projects a year within his own small firm. In the same time period, an architectural millwork expert may have built fifteen of his own projects each year.

In terms of assessing the value, integrity, of architectural drawings, our theoretical tradesman this has the advantage— in addition to his 300 built projects, he has estimated thousands of drawings, with hundreds of different architects, whereas the architect has only seen the comparatively few jobs for which he is commissioned. Thus, the tradesman would be in a better position to testify as to what is typical across the industry.

The example of a kitchen demonstrates an architect’s shortcomings in terms of technical insight. If, for instance, a kitchen is to be designed, the architect’s work is generally schematic. The tradesman on the other hand will have to prepare many shopdrawings based on the architect’s schematics. In other words, the architect is not concerned with how the cabinets will be constructed, only that they look like his drawings. Thus tradesmen are once again more qualified to opine on the nature of a structural defect.

Finally, when it comes to valuation of a claim, most architects will simply not be able to do the math. Although they are supposed to have a general knowledge on dollar per square-foot, it will be more difficult for them to provide any detailed breakdown, much less an accurate unit-price, in the way that a seasoned construction estimator or general contractor could. While architects are responsible for cost control of their clients’ construction budgets, they typically rely on their general contractor’s estimator to generate any sort of detailed budget.

Final Selection

Whether you plan to solicit a construction expert opinion from an architect, a tradesman, or both, use these Best Practices in selecting your high-end expert:

1. Educate yourself about the specific nature of the claim: this knowledge will help you in determining which construction expert you might seek.
2. Set up a plan to determine which experts you will call to testify: architect, tradesman, et al.
3. Interview at least three experts for each area of expertise you expect to provide testimony.
4. Ask for a statement of qualifications.
5. No expert should be retained without a contract. Most experts will have their own.

Well-educated architects may be more eloquent, and may present a more compelling image to an arbitrator or jury than the humble tradesman, who tends to be less educated. Thus the attorney’s quandry: “do I use the well-spoken architect who is less informed? Or the the seasoned tradesman with little testifying experience?”

The answer is: it depends. Defect(s) may be a function of an architect’s errors and omissions, for which most architects are insured. Perhaps he specified incompatible materials, or stressed material beyond their tolerance. In that case, an architect may provide the best opinion. Alternatively, there may have been nothing wrong with the specification of the materials, and the defect may be wholly attributable to poor workmanship. To be sure, a peer tradesman is well positioned to give an opinion on the nature of the defect. However, most decent architects can assess cosmetic defects, as well.

At the end of the day, what matters more than the specific vocation of the expert is his/her integrity and the experience and insight he/she has to offer. There are some great expert architects and tradesmen in the industry who are well suited to certain types of claims. The trick is to find just the right one for your case.