Denver Post’s John Aguilar reports on a recently decided case that will set a precedent for how condominium associations in Colorado address construction defect issues with the developer of a given project:

The Colorado Supreme Court gave builders a reason to cheer Monday, ruling that a homeowners association in Centennial was wrong to ignore a requirement that it first get consent from the developer before changing the way disputes over construction defects claims are handled.

The 5-2 ruling in Vallagio at Inverness Residential Condo Association v. Metro. Homes, Inc. upholds a “consent-to-amend” provision that the builder had placed in the declarations for the project, which stated that binding arbitration would be used in any construction defects disputes and that changing that stipulation would need the consent of the builder.

The Vallagio homeowners association decided to move ahead with a lawsuit against the builder without first getting its consent to change the dispute resolution method from binding arbitration.

Just last month, the Colorado Governor signed a bill into law requiring a majority of a homeowner association’s members to agree to join a lawsuit. Even with the new law, and this new case law, don’t expect a rush of new condo construction in Colorado any time soon.

Apologies to Mr. Shakespeare, but it seems that right now across the internet, a lot of attention is being paid to how the word “engineer” is defined. Merriam Webster, a fairly respected dictionary, offers three definitions of the word, engineer:

  1. “a designer or builder of engines”
  2. “a person who is trained in or follows as a profession a branch of engineering”
  3. “a person who carries through an enterprise by skillful or artful contrivance.”

(more…)

Man, depositions can be rough on some people. I personally know of situations in which various parties have thrown their laptops down in a temper tantrum, expert witnesses breaking down in tears or faking illness to take more time to prepare, or the time when an infamous developer parked his Ferrari right outside the room where his deposition was being held where he would try to claim he was broke, and have even seen video of a deposition in Texas where a fist fight broke out (Google it – you won’t be sorry…). (more…)

Perhaps because of the requisite remote control making it look and feel like a toy, for some reason people seem to think that drones are just toys. Not that they can’t be a ton of fun — it is just that they can really screw up the already complicated and difficult to understand airspace above our heads.

Consider then the following points:

  1. The FAA has incredibly detailed and complex regulations governing every aspect of flight, right down to the toilets in the lavatory and the screws securing the overhead bins
  2. The FAA has been very vocal about its intent to regulate both recreational and commercial drone operations
  3. You don’t mess with the FAA

I learned this last point firsthand during the ground school portion of my flight training prior to earning my private pilot license. And now it seems that a prominent commercial drone photography operator is learning that lesson as well, according to Digital Trends:

A Chicago-based company that specializes in aerial photography using drones has agreed to pay a $200,000 penalty to settle a case brought by the Federal Aviation Administration (FAA), which had accused it of violating aviation regulations. The figure was a significant reduction on the colossal $1.9 million the FAA had originally proposed.

The company, SkyPan, will also have to hand over an additional $150,000 if it breaks FAA rules in the next year, and another $150,000 if it fails to comply with the terms of the settlement agreement.

The flights at the center of the dispute took place over Chicago and New York City between 2012 and 2014.

The buzz word du jour, Big Data, is now coming to the legal profession. Forbes reports that the old stalwarts LexisNexis and Westlaw are facing some potential disruption from up-and-comer Ravel Law.

Here is some more information about the firm:

Established in 2012 by two lawyers with backgrounds in analytics, they provide services designed to help legal professionals draw insights and connections using advanced analytical algorithms.

One of their services– Judges Analytics – lets lawyers search through every decision made by particular judges to find those most likely to be sympathetic to their arguments. The data is visualized through Ravel’s dashboard in a way that makes it easier to spot connections and opportunities that otherwise would have been missed.

The more things change, in some way, the more things seem to stay the same. One of the constants in my ongoing education as a marketer in the legal industry is the sage advice of Ed Poll’s LawBizBlog.

A recent post of Ed’s tackles the perennial subject of technology’s impact on labor markets. Specifically, as a legal professional, he focuses on the impact of technology on the legal profession combined with the economic climate of the most recent recession. (more…)

As promised, over the coming weeks and months, we’ll be publishing a series of articles gleaned from West Coast Casualty’s 2014 Construction Defect Seminar. This article focuses on one appellate decision that impacts attorneys and specifically, their relationship with expert witnesses.

Presented by Thomas Halliwell, Esq. and Barry Vaughan, Esq.

Somehow, in less than an hour, Halliwell and Vaughan ran through dozens and dozens of appellate decisions. But they didn’t just read off of a list, they added a great deal of context and some occasional comments.

I couldn’t type fast enough to cover these master orators and their insightful observations, but I was able to gain access to some notes that they published to accompany the presentation. Under the category of decisions impacting attorneys, there was just one case.

DeLuca v. State Fish Co, Inc. (2013) Cal.App.4th 671

In this case, a former corporate officer filed suit against the corporation. The initial filing involved real estate claims. The Defendant filed its own claim to rescind the deed to the property in question, and additional claims over violation of corporate doctrine. The Defendant also retained an expert to offer testimony at trial.

According to Halliwell and Vaughan:

The trial court declared a mistrial on the unlawful detainer action and found in favor of Defendant on the rescission and corporate opportunity doctrine claims. The Court of Appeal reversed on the rescission and corporate opportunity doctrine claims, and remanded for trial of the unlawful detainer claim.

Then things got interesting…

For the retrial, the Plaintiff in this case retained the same expert witness that had testified on behalf of the Defendant. Perhaps somewhat surprisingly, Plaintiff’s counsel was disqualified because of the possibility that the expert gave the attorney confidential information.

The case went to appeal:

The Second District Court of Appeal held that the expert witness did not possess any confidential information because once the expert witness was designated a testifying expert, the attorney- client privilege and work product protection were waived as to information conveyed to him by Defendant’s counsel in the prior trial. The Court then found that Defendant failed to establish the rebuttable presumption that confidential information materially related to the pending proceeding was conveyed to the expert witness. The Court stated that even if the information conveyed prior to the expert’s designation as a testifying witness could potentially be covered under the work product doctrine, Defendant failed to show that confidential information was actually conveyed, and moreover, that it was relevant to the pending proceeding.

For even more background on this case, visit FindLaw.


Old and new state office buildings, 350 McAllister St, SF

Image courtesy Wikimedia

As many people know, LEED v4 took a lot longer to be finalized than originally anticipated—largely due to political struggles involving key stakeholders and certain large enterprises. As many of my friends and colleagues know, I despise politics. Therefore, rather than get into all the muck, let’s dig into one of the more controversial subjects in LEED v4, and try to understand its impact on standard of care for the industry

What is an Environmental Product Declaration (EPD)? The always informative Stuart Kaplow has a great description at his blog, Green Building Law Update:

An environmental product declaration (EPD) is a method of quantifying the environmental impacts of a product. It is analogous to the nutritional label on a box of cereal. In the context of green building, EPDs will provide a way describing the environmental impact of a building material or product.

EPDs articulate the conclusions of a life cycle assessment. The aim of an EPD is to facilitate the comparison of the range of environmental effects attributable to a product in order to provide a sound basis for making informed decisions.

Life cycle assessment is widely accepted to encompass 5 stages: raw material acquisition, manufacturing, transportation, use, and end of life.

In other words, an EPD is a third-party assessment of certain material characteristics based upon objective criteria. If manufacturers produce an EPD for a given product, it offers design and construction professionals handy insight into the environmental impact of that product.

How EPDs affect Standard of Care

When we talk about environmental impact, an important part of the equation also involves impact on human health—since we are also part of the environment. One of the components to an EPD is toxicity. This is where things start to get really interesting. There are multiple approaches to assessing toxicity, including certain ISO standards that have been adopted by various European countries. In particular, ISO 14025 is referenced by the USGBC. Unfortunately, that standard was last updated in 2006, making it somewhat out of date in the fast-paced world of high performance design and construction.

As Kaplow points out in another blog post:

Among the loudest critics of the LEED v4 Materials & Resources credits related to EPDs is Perkins+Will architect Douglas Pierce, who authored a White paper, “LEED V4 Should Lead On Material Health Transparency By Accepting Only Environmental Product Declarations (EPDs) That Comply With the Federal Trade Commission’s (FTC) Truth in Advertising Law”. Pierce highlights that EPDs and their use in LEED V4 “have a large loophole related to toxicity”. The White paper argues that toxicity must be detailed or risk violating the Federal Trade Commission Green Guides.

In other words, the standards for defining toxicity related to EPDs still have some work left. The difficulty here is immediately apparent, as architects like Pierce may in effect be forced to make legal interpretations. As Kaplow explains:

The White paper is legally not correct, .. but who would seek legal advice from architects (even a well respected architecture firm like Perkins+Will)? However, the White paper is useful in identifying the shortcomings of EPDs and in particular ISO based EPDs.

Will we need to include legal counsel as part of the design charettes in the Integrative Project Design process? (I actually do think that that is a very wise suggestion.)

Should attorneys be reviewing BIM files and specifications? After all, those do constitute “contract documents” and who better than an attorney to evaluate the merits of a contract? (I think that is a horrible idea – especially at the hourly rates most attorneys charge…)

Moving Forward, to a healthier built environment

Regardless, in my opinion, the best aspect of the whole discussion around objective third-party standards related to Environmental Product Disclosures, is that we are even having the discussion in the first place.

Only through intelligent discourse, backed by evidence, can we move forward to improving both the environmental and health impacts of the products we use to design and construct the buildings in which we live, work, play and come together.


Resources:

The Consumerist’s Chris Morran has a post up about why they believe consumers should always opt out of what they call “forced arbitration” clauses. Here is one of the reasons they give:

Companies want you to arbitrate because the system has been shown to be heavily unbalanced in favor of businesses — who have the legal knowledge, experience, and funding to put up a proper defense — while harmed consumers often enter into the complicated process without legal representation.

Here’s the thing: I’m not a lawyer, but neither is Chris Morran. So neither Morran’s post nor this one should be mistaken as legal advice.

Unlike Morran however, I have been involved in hundreds of legal disputes—most of which involve consumers, typically homeowners. I have been involved with cases that ended in a jury trial and cases that ended up in binding arbitration. At least 95% of the cases I worked on ended up settling out of court, typically as a result of mediation.

When a consumer suffers damages as a result of a defect or poor workmanship, the legal aspects of presenting such a case typically involves a great deal of technical analysis and expert opinion. In most cases, the outcome often depends heavily on interpretation of these technical details.

What most people fail to consider

In a jury trial, it is the jury that must decide the merits of a particular case. As we all know from grade school, juries are made up of “peers” selected at random from the populace. As attorneys will tell you behind closed doors, most juries are made up of people (and this is a direct quote) “too stupid to get out of jury duty.”

Here is the point: If the experts can’t agree on the merits of certain highly technical issues, how is the average citizen supposed to make a determination?

A better option?

In a binding arbitration, my experience has been that the arbitrators are generally more knowledgeable and informed. Every attorney and expert I have worked with prefers arbitration over jury trial—regardless of whether they are representing plaintiff (consumer) interests of defense (business). In fact, some attorneys and experts I know representing consumers report that they typically see awards that are 50% more than what they would expect for similar cases before a jury. Also, the costs for legal fees and expert costs are typically much less for an arbitration than for a jury trial.

Regardless, the key to a successful outcome depends on the attorneys, their staff, their experts, and most importantly, the evidence at hand. The reason most cases I have been involved in have settled out of court is because nobody in their right mind wants to gamble with the unpredictable outcome of a jury trial.

Again, I’m not an attorney, so you should really check with your attorney before making a decision either way.

I have seen some architectural designs that one might consider to be criminal, but requiring all architects to be fingerprinted as part of licensure? That seems a tad extreme.

Starting January 1, 2014, architects who apply for an occupational license in Texas will have to share their fingerprints with the state. Texas House Bill 1717, passed earlier this year, says that applicants seeking a license from the Texas Board of Architectural Examiners must submit “a complete and legible set of fingerprints, on a form prescribed by the board, to the board or to the Department of Public Safety for the purpose of obtaining criminal history record information.” The FBI would also have access to all those fingerprints….

So what happens if an architect in good professional standing is revealed to have a minor crime on his record due to being fingerprinted? Could he lose his license, despite the quality of his work? The TBAE absolutely reserves that right. “There are criteria that TBAE Enforcement staff consider in these reviews, and mitigating circumstances include how long ago the conviction was, whether it was related to the practice of the profession, and more.”

Via The Atlantic Cities