A Key Litigation Ally - Your Own Expertise

As much as construction industry firms rely on attorneys and insurance carriers when facing a lawsuit, clients should not lose sight of how much value they can add to their own defense.

By Gail L. Ritzert, Esq.

Far more often than they wish, contractors, subcontractors, and property owners find themselves in litigation over construction delays, construction defect, property loss, or personal injuries. How interested they remain in the litigation - even when they're the party being sued and insurance has largely taken over - goes a long way toward determining how favorable an outcome they will get.

The plaintiff - the company pursuing a claim - is naturally motivated to assist in the proceedings. The defendant - the company being sued - sometimes tends to ignore the process, assuming that between its attorney and its insurance carrier, its needs are met and its expertise is no longer needed. That is a mistake, and one that can come back to haunt a contractor or subcontractor in many ways. You - the true construction expert - can be a vital weapon on your own behalf as we prepare for trial.

One of the most critical areas in which a client can assist its attorney is in neutralizing - and sometimes even disqualifying - the adversary's hired-gun expert.

Before outside experts can testify at a trial, the court must determine that they have the requisite experience on the subject and base their opinions on accepted methods and protocols. Expert testimony is technical by its very nature, and I can recall numerous cases in which my clients' expertise - shared with me - pointed out weaknesses in experts' credentials, methods, or analyses. In some cases, in what are known as Frey challenges or Daubert challenges, attorneys can convince judges not to allow an adversary's expert to testify. Attorneys who specialize in construction cases are starting to recognize that in New York State, the bench is getting more aggressive about insisting that hired-gun experts truly have credentials that warrant their testimony. In at least one construction case where I got a favorable verdict for my client, I attributed that verdict in large part to my successfully arguing for the disqualification of the other side's expert.

Even if a challenge fails and the expert's testimony enters into evidence, I can use my client's knowledge - particularly analysis of specialized documents - to pick apart that information on cross-examination, weakening its value in the eyes of the judge or jury. You may even be familiar with your adversary's expert and know of any weaknesses we can use to impeach any testimony against you.

But how else can construction clients assist their attorneys? Even at the very beginning of litigation - when we're preparing your defense - your knowledge of the specific work site and general construction norms are key components in developing big-picture strategies. Another way you can assist is by breaking down the technical aspects of construction into terms that jurors can understand.

We also want to develop a defense that gives us the best chance to prevail, and your analysis of the evidence - particularly documents - can be of immense help to your attorneys. Your understanding of the complexities of the case may assist in streamlining the issues to be litigated, which in turn may reduce litigation costs.

By working side by side with your attorney, you can provide counsel with the nuts and bolts of the specific contract and project. As an expert in the field, you can also provide an overview of the relevant construction protocols, procedures, codes, rules, and regulations and how it all relates to the particular claim.

For example, in claims based on work outlined in contracts, it is essential that you work with your lawyer to identify not only the contract requirements, but also the intricacies and relationships on the project. In addition, the client can provide a detailed explanation of how a given task - central to the litigation - was to be performed, the various pieces of equipment that could be used to complete the task, and how each piece of equipment functions.

You have to remember that attorneys - even those like me with sub-specialties in construction litigation - are more expert in the law than in construction. In the end, it's important not to lose sight of how much value you can add to your case when you remain an active part of your own defense team.

Gail Ritzert is a partner with the law firm of Ohrenstein & Brown, with offices in Manhattan and Garden City, N.Y.