Construction Expert for Complex Litigation
By: Derek Graham, an ALM listing expert.
Finding the right construction expert for defect and workmanship claims expert is a slippery slope for attorneys whose specialty is not construction. A typical strategy to find a construction expert is to retain an engineer or architect expert, since like attorneys, they are degreed and licensed. I believe that, for some, there is a tacit notion that having a degree makes one a more qualified witness. This boot-strap stereotype does a disservice by significantly narrowing the field of candidates, and disqualifying some of the best resources.
The other reason attorneys default to architects is because architects routinely inspect tradesmen work quality for approval or rejection as a daily part of their office. So as it should be, per the AIA contract family. Thus, it is understandable for an attorney to seek an architect to render an opinion on defective workmanship. A tradesman would be at least equally as capable as the architect. Indeed, 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, as good or better as any architect.
"The knee-jerk selection of 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.
Yet even within firms that specialize in construction litigation, many attorneys don’t have the precise knowledge required to understand the complex science of defects 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 latter condition can be problematic, as it may preclude the reliability of the construction expert. The subjective nature and lack of consensus about 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 intent and vision built into the design documentation that is meant to set the bar for quality. The level of quality is what determines the value of a construction dollar on a project. Quality levels can sometimes be ascertained directly from the price per square foot for different types of construction. For high-end construction, the range is wide. It is not enough to say “I want the best,” or “I want the highest quality,” because no two architects will measure quality in the same way.
An architect less experienced in high-end is more likely to under-design for his clients than a seasoned high-end architect, simply because his concept of high-end is limited, and not sophisticated enough to make subtle adjustments depending on his clients’ design intent. This will become painfully evident after all of the costly infrastructure is installed, and when there is little or no time left in the schedule to make amends.
"In the 19th century United Kingdom, architects and builders were required to maintain budgets. They absorbed any overages.
Boutique” architects designing ultra-high-end projects end up all over the map in terms of the integrity of their designs and the cost to build their projects. The same is true of high-end contractors, who aspire to this most lucrative building sector. Such disparity lends itself to the wild fluctuations in practice that invariably lead to defect complaints.
Of course, it is the construction expert who will ultimately evaluate and assess workmanship defects. However, it is up to the attorney to choose the right expert for the case. In order to do this, an attorney should have at least a basic understanding of what makes high-end residential construction litigation so very different from all other construction litigation, such that he can make the most informed decision, and choose the right expert for his case.
Luxury: Custom or off the Rack
Custom high-end residential construction must be differentiated from luxury residential construction: whereas both niches are in the top price tier, luxury construction – in modern parlance, nowadays refers to redundant Modernist glass tower condominiums featuring fit-outs designed by boutique architects and interior designers. The units all receive the same interior treatments. Such standardization keeps these construction schedules moving forward and defects to a minimum. There is little time or interest in customizing luxury developer work, as customizations simply slow down the cycle.
As one would expect, defect claims are (nowadays) unusual in luxury residential development. Custom high-end residential construction also features accomplished designers and architects; however, these designers are tasked with creating a more or less unique design according to each of their clients ’budgets and vision. That may not sound like much, but it can be a long, drawn out, tedious process. The level of scrutiny is considerably higher in custom high-end residential construction than it is in developer work. Accordingly, an architect can cycle (design and build) several identical apartments in a fraction of the time it would take to design one or two customized units.
"design standardization in the high-end is more efficient, but NYC is still the most expensive place to build on the planet.
The timeline from design through build is considerably longer in custom high-end residential construction, than it is in the developer market, because custom work invariably requires an extended design and development window before construction drawings can be developed. Production and installation is also protracted.
"Building are going up at a feverish pace, yet any efficiencies have done little to reign in skyrocketing costs.
A developer I work with needs about sixteen-weeks to turn around a typical two-bedroom unit, in an eighteen-story condo. All the units have construction drawings, and preorder of standard materials. There is little or no design and development period. By comparison, a similar gut-renovation for a custom high-end renovation might have a twelve month design window, and twelve to eighteen month construction window.
Finally, there are no close working relationships to gum up the works between developer architects and condominium buyers, whereas building custom homes can best be described as a short, stormy, three-way marriage between the boutique architect, the well-heeled – and not atypical arrogant owners, 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 more the likelihood for conflict. This circumstance describes a majority of the cases I have been involved with.
Your construction expert
The trouble with finding experts offering opinions on high-end residential construction architectural workmanship defects is that projects with defect claims typically involve systemic defects across five or ten trades. Defects are abundantly evident in a job gone south across the entire project. 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 it is typically the general contractor who is 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 the architect and owners’ standards, it will be evident in most of the visible work – particularly, all the finish and cabinetry trades. It will also be evident behind the walls and ceilings.
Why would a contractor endeavor to build to a level below what would be acceptable to the owner? Sometimes, he does so inadvertently: he may be ignorant, incapable, or inexperienced in the level of workmanship and quality expected of him; he honestly believes he can deliver high-level work, and may even 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. This latter circumstance is not inadvertent, and is considered to be unscrupulous business practice.
"Specialization is key, yet never assume you a licensed engineer automatically trumps a building industry expert. My argument is that the former lacks practical experience, and the latter theoretical experience.
All construction experts are not equal. Construction expert engineers tend to be specialized: if you want an opinion, for example, on a structural, electrical, or plumbing claim, you would seek an expert in his respective calling, who need not necessarily be an engineer. However; interior fit-out seldom requires an engineer’s opinion, nor does it merit one. Typically an expert in a trade such as woodworking, or ornamental iron, could assess architectural defects within their bailiwick, and they may appear to be the one in the best position to do so; however, that does not guarantee they will make a good witness.
A construction expert may have any specialty, or they may be trying to be the one-size-fits-all expert. I am dead-set against a construction expert offering opinions on matters for which he or she has little or no practical exposure or insight. Turning away work is an exception that few experts take, or can afford to take, and that is why there are so many experts practicing outside their element.
Do Architects Make Better Experts than Trade-Experts?
Many architects also provide construction expert witness services to support defect claims. Some are better at it than others. Their dalliance into the defect construction expert market is not welcome by those in the construction industry. Yet, few architects I have met have actually ‘worked the tools,’ a prerequisite to expertise in means-and-methods and critical insight to the comprehensive nature of a given defect. In other words, they may be able to identify the defect, but will be hard put to demonstrate cause, its impact, or the cost of remediation, due to limited technical prowess. For that reason, architects with little or no field experience bring less to the table than a seasoned trade expert.
My uncle was an FAIA. He rebuilt an 18th century farmhouse, turned wood, and was hands-on as they come. I've met very few besides him of that caliber.
For my money, trade experts typically have vastly more experience than architects in terms of number and diversity of projects. For example, within his own small firm, a project architect may have been involved with three of his own projects a year, for twenty-years, whereas an architectural millwork expert may have built fifteen of his own projects each year, for twenty-years.
The same is even true of assessing the value, integrity, of architectural drawings. The tradesman has the advantage again – in addition to his three-hundred built projects, he has estimated thousands of drawings, with hundreds of different architects, as opposed to the narrow exposure of an architect, who only sees the comparatively few jobs that he is commissioned. Thus, who would be in a better position to testify as to what is typical across the industry?
" a site superintendent can read drawings as well as an architect. The difference is - the former is a builder, the latter a facilitator.
In terms of technical insight: if for instance, a kitchen is to be designed, the architect will generally prepare basic elevations and details, which are relatively schematic, as compared to the copious shopdrawings a millworker’s draftsman will have to prepare based on the architect’s schematics. The notion being that the architect is not concerned with how the cabinets will be constructed: only that they look like his drawings. That being said, who is in a better position 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 – $/square-foot, depending on building type, of the construction dollar on their projects, they will be hard-put to give any detailed sort of breakdown, or even accurate unit-price, in the way that a seasoned construction estimator or general contractor might. When architects require cost control of their clients’ construction budgets, they are typically wholly reliant on their general contractor’s estimator to generate any sort of detailed budget, or value engineering options. After all, architects are not contractors.
On the other hand, well-educated architects may be more eloquent, and may convey a more compelling image to an arbitrator or jury, than humble tradesmen, who tend to be less educated. This is a quandary for attorneys: “do I use the well-spoken but less informed architect over the seasoned tradesman who has little testifying experience?”
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 game plan to determine which experts you will call to testify: architect, tradesman, other …
3. Interview at least three experts for each area of expertise you expect to provide testimony
a. Have they testified before?
b. Have they prepared construction expert witness reports?
c. Are they experienced in high-end construction?
d. Do they have experiences in similar cases?pert
4. Ask for statement of qualifications
5. Contract: no expert should be retained without a contract. Most experts have their own form.
Well-educated architects may be more eloquent, and may convey a more compelling image to an arbitrator or jury, than humble tradesmen, who tend to be less educated. This is a quandary for attorneys: “do I use the well-spoken but less informed architect over the seasoned tradesman who has little testifying experience?”
The answer is: it depends. The defect(s) may be a function of an architect’s errors and omissions, for which most architects are insured against. Perhaps he specified incompatible materials, or stressed material beyond their tolerance. In that circumstance, 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; any decent architect can also assess the same cosmetic defects.
At the end of the day, it is not the specific vocation of the expert, but the integrity of the construction expert witness and the experience and insight he has to offer that should inform your expert selection. 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.