There have been numerous leaks in the copper domestic hot and cold water piping, resulting in property damage.
The soldered joints in the copper water piping were over fluxed. This has caused flux corrosion and leaks.
The copper water piping was not reamed at the tubing ends. This can cause internal erosion of the tubing and fittings.
The water heaters have no drain pan, as per manufacturer's installation instructions. This will likely cause water damage to property in garage.
The shut-off valves for the water supply are corroded and leaked and caused damage. The valves were not properly selected by the contractor for this service and are dezincing.
Certain high-efficiency water heater PVC flue vents are not insulated, as per manufacturer's installation instructions.
There is no insulation on the hydronic hot water supply and return piping that provides hot water heating to certain fan coils. California Title 24 requires this piping to be insulated.
Certain laundry washing machine indirect drains are not readily accessible and the water valves are not accessible. They are located behind the stacked washer/dryer.
Certain 3" PVC water heater flue vent penetrations are not properly fire rated through the all in violation of the building code. This occurs through certain units and in the electrical rooms.
Hot water takes over a minute to warm up in the bathrooms. One minute was used at the criteria even though most reasonable homeowners expect hot water in less than 30 seconds.
Common Electrical Construction Defects
The unit sub panel enclosure is setback and has gaps in the drywall greater than the code allowance.
The A/C unit disconnects have inadequate working clearance.
The cables are insufficiently supported as required by code.
The cables within 6 feet of the attic access are not protected from damage.
The recessed lights fixture sockets have been over sprayed with paint/or drywall texture.
The electrical device boxes are setback and have gaps in the drywall greater than code allowances.
The boxes installed in rated walls are improperly installed.
The conduits and/or cables are insufficiently supported as required by code in the electrical closets.
The exterior exposed light fixtures are not sealed to prevent water intrusion.
Quality of Workmanship.
Common Mechanical Construction Defects
Certain flexible A/C ducts are not supported or installed properly, and are kinked.
The A/C condensate drain piping was not installed properly. Based upon the installation instructions, it does not contain proper traps, and is not vented or supported properly. This has caused premature flow to secondary drains causing damage.
The condensing units are not identified with the unit address as is required by the mechanical code.
Clearance around the outdoor condensing units is not adequate and does not comply with the manufactures requirements.
The condensing units are not level as required by the unit manufacturer.
The refrigeration tubing insulation at the outdoor condensing units was not rated for exterior application and is deteriorating from exposure to ultra violet light.
The refrigeration tubing penetrations of the exterior walls are not sealed as required by building code and energy code.
The flexible dryer vents are kinked in the laundry closets. This causes poor dryer performances and creates a fire hazard.
There are no check valves on the hot water recirculation fan coil heating loop. The check valves should be located at the recirculation pump discharge.
The laundry closets were not provided with an exhaust fan. This is a code violation.
Comparison of Common Law (US) and Civil (EU) Litigation Practice
To make sense of our research on “A Comparison of Construction Claims Handling Practices in the U.S. and the E.U.” we must understand the litigation processes in both the E.U. and U.S. There are similarities and differences to both approaches.
What is a Lawsuit?
A civil lawsuit or a legal action is a method of dispute resolution. Two or more parties have some kind of dispute which they are unable resolve it amongst themselves. Sometimes parties may have used some kind of alternative dispute resolution process like negotiation, mediation (where a neutral third party tries to help the parties reach a resolution) or arbitration (arbitrators are hired to act as judges in a private version of a trial) instead of a complaint being filed in the appropriate court.
If the parties leave it up to the legal system to work out their differences then to certain extent they give up control of the outcome and are left to advocate for their interests, providing facts, witness testimony, evidence and legal arguments in the hope they’ll prevail.
There’s virtually no limit to the types of parties who could be involved in a civil action, from individuals to multi-national corporations, government entities to non-profit organizations. Courts can handle disputes that are in the hundreds of dollars to potentially limitless amounts of money. The outcome of a civil lawsuit may just impact parties living next to each other or countries in different parts of the globe.
What are the Key steps in a Civil Lawsuit in the U.S.?
Generally, litigation in the U.S. goes through a number of steps or proceedings, which can vary from jurisdiction to jurisdiction, including,
Pleadings
Discovery
Trial
Appeal
Pleadings
To start the litigation process the plaintiff files a complaint. It lays out the basic facts of the dispute, states the legal theories for recovery and what’s sought to resolve the matter (which could be a sum of money or specific action by the defendant, the party against whom the complaint is filed). The defendant responds to the allegations with an answer, states possible defenses and may make counter-claims against the plaintiff.
The defendant may ask the court to dismiss the complaint in whole or part, either because what’s being claimed doesn’t amount to breaking the law (a motion to dismiss), or, with the filing of affidavits, claim since there are no material, disputed facts in the case the defendant is entitled to judgment as a matter of law (motion for summary judgment). Normally if a complaint is dismissed, in whole or part, the plaintiff has an opportunity to amend or re-file the complaint.
Discovery
Discovery is a critical part of the civil lawsuit process. Through it both parties should have all the relevant facts of the dispute. With the benefit of these facts the complaint may be amended or could be withdrawn. With newly acquired information a defendant may file a motion for summary judgement. The parties may also have a greater understanding of the strengths and weakness of the case and choose not to risk a negative outcome at trial and negotiate a settlement.
Discovery allows the parties to submit written questions to each other, ask for copies of documents or evidence and ask each other to admit or deny statements of fact. During depositions parties and witnesses are asked questions under oath by attorneys for both sides. Not only can depositions produce facts that the opposing party didn’t know before but both sides see first-hand how well both sides’ witnesses may perform during a trial. How well or poorly a party’s witnesses do may be critical to the decision to proceed to trial or settle the case.
Discovery can be simple and straightforward or drawn out and complex. Parties can object to questions and requests and seek protective orders to limit release of information. One party may seek court help to obtain information, evidence or to depose an individual. Because of the importance of discovery parties may be very aggressive in seeking information or trying to prevent the other party from obtaining it.
Trial – the Third Step
Most civil lawsuits are resolved prior to trial because it can be very expensive, consume a lot of time and energy and depending on the nature of the dispute, emotionally draining or painful. Without a resolution agreed to by the parties it will be decided at trial. Disputed facts and verdicts can be decided by a judge or jury.
Armed with what they learned during discovery the parties tell their stories through documentary evidence, evidence in the form of objects, graphs or charts, testimony of parties and witnesses. Both sides try to simplify the issues and create sympathetic narratives they hope will win the day. Attorneys on both sides try to show the opposing side’s witnesses aren’t credible and their arguments don’t make sense while at the same time bolstering and polishing their version of events.
Trials start with opening arguments and end with closing arguments by the attorneys. Attorneys can ask the judge to rule on evidentiary and legal issues during the trial and object to submission of evidence and of questions to their witnesses. The plaintiff has the burden of showing, in most cases, it’s more likely than not its version of the truth is more credible, the law was broken in some way and the plaintiff is owed an amount of money and/or some action by the defendant for it to be made whole.
The judge or jury makes its decision which may be a dismissal for the defendant or a total or partial victory for the plaintiff. The plaintiff should be awarded the relief sought if the legal claims are successful, though it may get much more or less than it sought.
Appeal
The appeal is a process by which rulings by judges and the outcome of trials may be reviewed by panels of judges. The appeal process isn’t an opportunity to re-try a case, though an appeal can be based on a claim that a verdict wasn’t based on the evidence used at trial. This is a difficult and usually unsuccessful approach. Generally, a party that feels aggrieved by a decision because it violated the law or a rule of procedure can ask the issue go back to the trial court so the decision can be corrected or at least reviewed again by the judge.
After both sides submit briefs containing their arguments why a decision should be overturned or upheld attorneys have an opportunity to make legal arguments before the appellate court judges. They can ask questions of the attorneys and seek additional briefs on particular topics of interest. Eventually the appellate court issues a decision to uphold or overturn the lower court decision. If it’s overturned often lower courts will be issued directions on what to do next. The decision need not be unanimous. The majority opinion is the final decision.
What are the Key steps in a Civil Lawsuit in the EU?
In most E.U. countries the civil lawsuit process is defined by the civil procedures of each of its 28 countries. Generally, the civil lawsuit process in the E.U. breaks down to,
Pre-trial pleadings
Pleadings
Production of Evidence (Discovery)
Trial
Appeal
Pre-trial Pleadings
In the pre-trial pleadings phase the parties, without the involvement of the court, try to resolve the disputes between them. The parties make various requests, with letters or notices sent between them, where the parties attempt to substantiate their positions on the merits of the case. If the parties fail to reach a resolution the civil lawsuit process continues.
Pleadings
The aggrieved party submits the complaint, with documentary evidence, to first instance court in accordance with the country’s applicable procedural laws, starting the legal action. The party receiving the complaint typically answers the complaint and produces all available evidence to support its arguments that the complaint be dismissed.
Production of Evidence (Discovery)
In E.U. countries the burden of production of evidence (discovery) rests on the claimant/plaintiff, the party seeking the remedy.
Trial
The plaintiff has the burden of proof., however the plaintiff does not have the discovery rights similar to the legal system established in the U.S. To further substantiate then any evidence required has to be requested to the court. The court further assesses the necessity for it and if deemed necessary then requests the opposing party to provide it in accordance with the law. If the dispute wasn’t settled and goes to trial, the judge presumably will have looked over all evidence and paperwork submitted to the court and will guide the parties through the trial. The parties call witnesses and produce more evidence, which is relevant or important to the case at hand. The judge generally acts in an investigatory role, seeking out the truth of the situation then applies the law.
Appeal - the Fifth Step
The appeal is a second stage litigation process, because in almost all cases, the case at hand, an appeal will be submitted to the Court of Appeal (the procedure on how that’s done will vary from country to country). The Court of Appeal consists of two general directions first is an ordinary appeal and second is cassation. An ordinary appeal, when a case is appealed every aspect of it is reconsidered and a new examination of the facts may take place if necessary. However, a court of cassation has limited freedom, especially where the facts are concerned. In cassation it is required by law to base its deliberations on the facts as established by the lower court and cassation would mean quashing a judicial decision on a point of law, including procedural law.
Major Differences Between U.S. and E.U. Civil Litigation Process
Production of Evidence (Discovery)
Discovery is much more limited in the E.U. There are no requests for production of documents, interrogatories or depositions. Documentary evidence is produced by the parties during the course of the litigation.
Pre-trial Pleadings
There are no motions to dismiss or for summary judgement in the E.U., which can be critical tools by defendants in the U.S. system to end a legal claim early in the process or at least narrow its scope. This can greatly reduce the cost for a defendant and the outcome of these motions is an important factor in whether a case will settle and if so, for how much.
Trials
No European civil procedural system uses juries, except the court of Great Britain/United Kingdom. Litigation costs in the E.U. are generally much lower than in the U.S. While in the U.S. the majority of civil cases will settle before a trial verdict, the opposite is true in E.U. where most civil cases are decided by the judge and most of those decisions are appealed.
Roles of Experts/Expert Testimony
This is one of the most important differences. Both regions use expert testimonies differently.
In U.S. civil cases the use of experts is common, especially in more complex cases. In the E.U. it’s rare for a civil case to include use of expert witnesses. If there is such a witness he or she will be named by the judge to help determine the facts, not by a party to help put its case in a favorable light, nevertheless parties may provide their experts as well.
The Roles of Judges and Lawyers
In the U.S. judges are more of a director who must consider court procedure and prior court decisions. The judge is neutral and normally doesn’t intervene in fact-finding except to interpret and enforce rules of evidence.
In the E.U. litigation system a judge is more a referee and the trial is a more investigative process. E.U. judges are also not strictly bound by case precedent, except the courts of Great Britain/United Kingdom, however high authority, even though formally not binding, is possessed for the pronouncements of the Highest or Constitutional Courts. Case law is more informative than dispositive. Greater sources of law for judges and lawyers are legislative statutes and codes.
E.U. lawyers need to demonstrate that statutory law applies in the case for a particular fact so their role is more to advise, inform and point the judge in the right direction, and the procedure largely is in writing. U.S. lawyers engage in more debate, oppose what the other party seeks and are more active, use much more case law, and try to convince the jury and/or judge to believe their client’s side of the story.
In both systems, judges and lawyers interact with each other and depend on each other.
The Scope of the Appellate Process
The difference in this area is at least formally significant. In the civil systems, an appellate court has plenary authority to review an inferior court's judgment, not only as to issues of law but also as to issues of fact.
The underlying theory is that the civil codes determine the substantive basis of the case and the higher court judges have a more authoritative understanding of the code's provisions. The underlying civil-law theory regarding issues of fact traditionally has been that evidence is a legal science and that the strength of an item of evidence is governed by a set of rules. Note
In most civil case appeals in the U.S. the evidence on record is accepted as the fact finder (judge or jury) accepted them. That deference doesn’t happen in the E.U. In common law systems the appellate court reviews for “error” in jury-tried cases and “abuse of discretion” in most judge-tried cases. Note
The E.U. appellate process in civil cases may look more appealing to lawyers and their clients, because they see the first instance courts as a preliminary run or try-out of the case.
Conclusion
It’s worth noting the differences for each type of litigation process: jury trials, the roles of judges and lawyers, the scope of appellate process/review, the role of experts and production of
evidence. These differences significantly impact each litigation processes within each region. They do so by impacting the length and cost of litigation process.
When approaching it from a legal theory point of view, both systems have defined their litigation processes based on their own values concerning justice, fairness and equality.
Articles in This Series
Comparison of Common Law (U.S.) vs. Civil Litigation (E.U.) Practices (THIS ARTICLE)
Top Issues in Construction Projects in US vs. EU (COMING SOON)
Construction Risk Management in the US vs. EU (COMING SOON)
Construction Claims Management in the US vs. EU (COMING SOON)
References
Civil Procedure Rules for European Courts by Geoffrey C. Hazard Jr
Civil Lawsuit – The Civil Litigation Process Explained In Steps by TorHoerman Law, LLC
Major Differences When Litigating Under Common Law or Civil Law by Howard Colman (Partner at Colman Coyle Solicitors )
Common Law And Civil Law: A Brief Comparison by Legal Language Services
PFCS Construction Claims Analysis Method
PFCS Construction Claims Analysis Method
Collect: We organized and analyzed all applicable documents and information.
Plan and budget our work.
Issues/Allegations: We make a Sensible List that served as an outline of the analysis.
Investigation: We apply PFCS Building Performance Analysis (BPA) Process.
Analysis: We execute an issue-by-issue inquiry of all available information.
Conclusions: We often document our conclusions for each issue in a comprehensive report.
Present: We deliver expert deposition testimony and trial or arbitration testimony when necessary.
Answering the Tough Questions: A Forensic Approach to Consulting by David H. Heemann
The Most interesting Man Alive
David H. Heemann - Claims Coverage Counsel, Mutual of Enumclaw Insurance Group, is one of my favorite people in the world, one of my closest friends, and the only person I have ever met that qualifies as a true Renaissance Man. He's got a B.S. in Criminal Justice, a Masters in Forensic Science, a degree in law and has passed the State of CA bar exam, was an insurance executive, an independent claims adjuster, a CFO, a professional building inspector and consultant, a mold expert, a contractor, a technology entrepreneur, a lawyer, a professor, an airplane pilot, a sommelier, a Culinary Institute of America (CIA) graduate chef, and on, and on, and on...
The point is, he's really smart. I had the honor of working with David for a long time and was the beneficiary of his brilliance, knowledge and wisdom. In this article, Answering the Tough Questions: A Forensic Approach to Consulting, David shares a small slice of his hard-won experience with us.
One Minute Summary
INTRODUCTION: Merriam-Webster says forensics is “relating to or
dealing with the application of scientific knowledge to legal problems“. The forensic approach: Following a set of scientific rules, including the use of the research enterprise, scientific method, detailed and complete documentation, and integrity.
THE RESEARCH ENTERPRISE: This is your project plan; the processes and principles for a systematic pursuit of information, and problem solving. The research enterprise includes defining the project and its purpose, the manner and type of information to be collected, and the variables are defined to create what is called the research. From there, the information is analyzed, its validity tested, and its reliability checked.
SCIENTIFIC METHOD: A scientific method consists of the collection of data through observation and experimentation, and the formulation and testing of hypotheses. Steps include: 1. Problem Formation 2. Research Design 3. Data Collection 4. Analysis of the Data 5. Interpretation 6. Conclusions 7. Final Report / Presentation 8. Publishing 9. Re-Test.
DOCUMENTATION: Detailed documentation is critical. You need to create detailed field and research notes, project background summaries, charts and graphs, photographs with annotations, indexes of documents reviewed, and summaries of statements and findings.
INTEGRITY: Without your integrity intact, none of the other issues matter, because no one will listen.
FORENSIC APPROACH: You have a legal responsibility to provide your client with complete and accurate information at a level of a competent consultant. The information you prepare will be viewed by your client and their attorney, possibly the court and jury, and by the other side. When you use a forensic approach there really are no tough questions, you have all the answers documented.
CONCLUSION: Creating a system of checks and balances is what the forensic approach does naturally, standardizing your approach to every project in the same way. This tool provides you with a pre-established approach to dealing with any situation.
Why We Care
PFCS' job is to combine technical construction expertise, project management discipline, technology and standards to solve building problems. This document is one of the key standards that we apply. All of our work should conform with the guidelines established by this article.
List of Statisticians
At PFCS, we take a scientific approach to our analysis, and we do a better job at performing unbiased statistical analysis on our projects than any other experts we've seen. We've written internal standards on how this should be performed, and have even delivered a Random Selection and Extrapolation of Construction Defects program to the public. Often, it is necessary to collaborate with a statistician to validate our method at trial. While we've personally worked with a hand-full statisticians over the years, we were interested to see who else our clients have worked with in the past. So we sent the following email to all of our current and past clients:
I need a little help. I need a good referral.
I am looking for a good statistician to work with on projects (legal cases, mostly), and to refer to clients (usually lawyers or insurance companies). He or she will need to evaluate and testify about the problems with extrapolation based on poor sample selection methods in building performance evaluations (generally construction defect cases). In addition, s/he will need to evaluate my company's investigation method, including our random selection protocol, and be able to explain in a scientific but understandable way... that it's awesome ;-)
The results were impressive. We received many responses with statisticians up and down the west coast and beyond, even as far as Georgia! A brief break-down of our results:
1,737 emails sent to our clients
437 responses
109 referrals
64 statisticians
4 with 5-9 glowing recommendations each
The following 4 statisticians were highly recommended by several clients each:
Ronald Farina, Ph.D. - Farina & Associates 5160 Idylwild Trail Boulder, CO 80301 T: 720-938-6874 E: ronaldfarina@comcast.net
Gary Lorden, Ph.D. - LordenStats / Professor of Mathematics - California Institute of Technology Pasadena, CA T: 626-395-4349 E: glorden@caltech.edu
Duane L. Steffey, Ph.D. - Exponent 149 Commonwealth Drive Menlo Park, CA 94025 T: 650-688-7262 E: dsteffey@exponent.com
John R. Weeks, Ph.D. - San Diego State University Distinguished Professor of Geography San Diego, CA T: 619-594-8040 E: john.weeks@sdsu.edu
The full results of our survey are below:
Ronald Farina, Ph.D., Farina & Associates - T: (720) 938-6874 E: ronaldfarina@comcast.net
Gary Lorden, Ph.D., LordenStats / California Institute of Technology - T: (626) 395-4349 E: glorden@caltech.edu
Duane L. Steffey, Ph.D., Exponent - T: (650) 688-7262 E: dsteffey@exponent.com
John R. Weeks, Ph.D., San Diego State University - T: (619) 890-8452, (619) 594-8040 E: john.weeks@sdsu.edu
Tim Anderson, Portland State University
Jay Bartroff, USC - T: (213) 740-1044 E: bartroff@usc.edu
Dr. Paul Baum, Ph.D., CSU Northridge - T: (818) 497-7759 - Cell, (818) 677-2413 - Office, (818) 677-6079 - Fax E: paul.baum@csun.edu
Carol Benassi, Zurich North America
Stefan Boedeker, Berkeley Research Group, LLC - T: (310) 499-4924 - Direct, (213) 705-1324 - Cell E: sboedeker@brg-expert.com
Brian Bontempo, Mountain Measurement - T: (503) 284-1288 E: brian@mountainmeasurement.com
Linda Brown - T: (478) 918-6464 E: brownla@mindspring.com
Thomas Carroll, Thomas Carroll & Associates - T: (702) 263-8044 E: statisticalforensics@gmail.com
Dr. Louis Anthony ""Tony"" Cox, Ph.D., Cox & Associates - T: (303) 570-2643 - Cell, (303) 388-1778 - Office, (303) 388-0609 - Fax E: tcoxdenver@aol.com
Paul DeBoer, RGL Forensics - E: pdeboer@us.rgl.com
Steve Duree, Duree Barton P.C. - T: (303) 293-9966 - Office, (303) 437-0361 - Cell, (303) 320-0436 - Home E: sduree@duree.com
Dwight Duncan - dwight@econlit.net
Steve Eso - T: (760) 435-9663 - Home, (760) 650-6273 - Cell E: s_eso@yahoo.com
Adrian R. Flessing, RGL Forensics - T: (714) 740-6161 E: aflessing@us.rgl.com
Bob Fountain, Portland State University - T: (503) 725-5204 E: fountainr@pdx.edu
Bruce Gates - E: brucegates@comcast.net
Phillips Gorman - T: (626) 744-3540
Kyle Jacobson, Taylor, Jacobsen - T: (303) 987-8999
Joe Kanada
Dr. Colleen Kelly, Kelly Statistical Consulting - T: (760) 846-6763 E: kstat.consulting@gmail.com
Jeffrey H. Kinrich, Analysis Group - T: (213) 896-4544 E: jkinrich@analysisgroup.com
Joeseph A. Krok, PhD, The Claro Group, LLC - T: (213) 784-3079 - Office, (310) 213-7776 - Cell, (213) 452-6556 - Fax E: jkrock@theclarogroup.com
Mark Kuga, Delta Economics
Jim Lackritz, San Diego State University
John Landry
Richard Laton, CSU Fullerton - E: wlaton@fullerton.edu
Jeff Leedom, Price Waterhouse Coopers - E: jeff.leedom@us.pwc.com
Robert Lenk, RDLenk - T: (805) 350-0969 E: consulting@rdlenk.com
Bill Lepowsky - T: (510) 524-2101
M. Laurentius Marais, William E. Wecker Associates, Inc. - T: (415) 898-2255
Phil Martinson, Phil Martinson Engineering, Inc. - T: (503) 557-1555 E: phil@pmeng.com
Richard McCleary, UCI - Social Ecology Program - T: (949) 824-7280 E: mccleary@uci.edu
Jim Meeker, UCI - Social Ecology Program - T: (949) 824-1463 E: jwmeeker@uci.edu
Jubin Merati
Chris Money, Hagen, Streiff, Newton & Oshiro Accountants - T: (714) 750-4007, (949) 251-1133 E: cmoney@hsno.com
Cynthia Mulvihill, Geico
Jeya Padmanaban, JP Research - T: (650) 559-5970 - Office, (650) 559-5980 - Fax E: jeya@jpresearch.com
Ana Panorska, University of Nevada - T: (775) 784-6548 E: ania@unr.edu
Mike Phillips
Dean Plager, Quantitative Decision Support - T: (603) 431-1120 E: plager@comcast.net
Dr. S. James Press, UC Riverside - T: (951) 827-4241 E: jpress@ucr.edu
Dan Ray, Hemming Morse - T: (415) 836-4000
Rose Ray, Ph.D., Exponent - T: (650) 688-7264 E: rray@exponent.com
Jay Sickler, Cogence Group - T: (503) 467-7900 - Office, (503) 467-7901 - Direct
Steve Simmons - T: (714) 350-2220 E: sballsim2@gmail.com
Steve Sloman
Roland Sorge
Scott Stewart
Michael Sullivan - T: (415) 777-0707 E: michaelsullivan@fscgroup.com
Greg Taylor, Taylor, Jacobsen - T: (303) 987-8999
Audrey Thompson, Datalogix
Bill Thompson, UCI - Social Ecology Program - T: (949) 824-6156 E: wcthomps@uci.edu
Robert R. Trout, Ph.D. - T: (760) 944-9721 E: ecnxprt@aol.com
Ted M. S. Vavoulis, Vavoulis & Weiner - T: (213) 817-6600
Lynne Weber, Duff & Phelps - T: (650) 798-5500
William E. Wecker, William E. Wecker Associates, Inc. - T: (415) 898-2255
Stephen Wexler, Wexco - T: (310) 306-3877 E: wexler@wexco.net
Gerry Williams - T: (503) 318-1174
Jack Williamson, 3C Advisors & Associates
Michael Willoughby, UC San Diego - T: (213) 880-0789 E: mwilloughby@ucsd.edu
Dr. Jeffrey Wilson, Arizona State University - T: (480) 965-5628 - Office (480) 213-4460 - Cell E: jeffrey.wilson@asu.edu
Selecting and Evaluating Expert Consultants
Our company is an expert consultancy that offers services in virtually all aspects of the building lifecycle (see PFCS Services below). I think everyone can understand that all top tier consultancies shiver at the idea of being judged by clients who simply compare the fee schedules of various competitors (Think Wal-Mart vs. Nordstrom). Although our hourly rates are competitive, they will never be the lowest.
Our company's highest and best use, and what we have worked on for the last decade, is to figure out how we make the "Total Cost of Consulting" valuable to our clients. "Most value" is sometimes the lowest cost, but often not. “Value” is a function of how the fruit of the consulting work is going to be used. If someone pays for a report but does not read it, ignores the information in making decisions, or does not execute the recommendations, then the consulting work has no value, no matter how excellent the analysis.
Creating the most value for consulting services, regardless of whether the “total cost of consulting” is modest or extravagant, requires:
Case-by-case application of professional judgement by awesome, experienced and well trained consultants;
A well defined and fine-tuned system to maintain consistency and quality control;
A mechanism to get the price right and be able to compare the ultimate cost of the solution to the original plan, and;
Communication, information and feed-back by the purchaser of the consulting services.
Many of our projects are likely to lead to litigation, are currently in litigation, or have already been in litigation, so we know as well as anyone that life is messy. Litigation is unpredictable and constantly changing. Disciplined management in the face of constant, unpredictable change is hard; but we have figured it out. We even have a seminar to teach owners, attorneys and insurance professionals the discipline of “Managing Expert Work and Costs” - there is a 3 minute video introduction if you have time.
PFCS Services are offered in all aspects of the building lifecycle:
Portfolio Management of Construction Claims
For building industry players who are engaged in multiple construction claims (builders, general contractors, larger trade contractors, suppliers, material and product manufacturers, insurance companies, attorneys) each case can be considered a single battle in a larger war. Deciding how much to spend on each claim – each battle – is hard. How do these expensive decisions get evaluated? Although it should not be guesswork, it often is. PFCS has created a structured process for making these complicated, difficult, strategically important, return-on-investment (ROI) decisions.
PFCS will show you a method for managing your portfolio of construction claims, helping you develop a process for evaluating the costs of various scenarios in construction claim handling. At any point in any case, whether you’ve spent $1.00 or $3 million, you can ask and answer, or at least estimate, these key questions: How much has been spent so far? How much will it cost to get out now? What is a small fight worth? A big fight? What might trial costs look like, and is it worth the risk? As anyone familiar with litigation knows, each of these questions is likely to have best-likely-worst case answers.
The cheapest option is sometimes to get out of the case early, after only the most preliminary analysis. But claims run the gamut, so sometimes a long, expensive fight is the cheapest, best solution, especially if a good outcome will influence other cases.
Key System Components
Claims Management Plan: Brief strategy and tactical document including written objective, executive summary, litigation budget, written agreements with attorney and other vendors, a timeline, and a Claims Plan Manager job description.
Company Level Analysis: Worksheet that is a master list of all cases with best-likely-worst case scenario figures and a strategy summary for each. This includes a summary of all the individual Project Level Analysis worksheets.
Project Level Analysis: Worksheets for each case including best-likely-worst case figures for Attorneys, Experts, Other and Settlement/Judgment costs at various levels of litigation including immediate settlement, a small fight, a big fight and through trial. This includes a summary of the Vendor Scope-Budget Matrix worksheets, plus a settlement hypothesis.
Vendor Scope-Budget Matrix: This is an individual budget from each vendor on each project broken down to conform with the Project Level and Company Level Analysis worksheets.
Meeting Agenda / Minutes: Structure for preparing for, reviewing and updating the analysis periodically.
PFCS will soon host a conversation about portfolio management where your experience, concerns and general feedback will be welcomed. Stay tuned.
If you would like a sample proposal with supporting documents call us or email Pete Fowler at pf@petefowler.com.
