A large construction case is a complex beast. Many issues. Many parties. Lots of money at stake. Taking such a matter to trial requires skill, experience, and a trial team with depth. It requires lawyers who know how to present a case to a jury when necessary and legal assistants who can prepare that case for trial. It needs support staff who can provide document services, run computer programs to organize evidence, and do online research. Hundreds, sometimes thousands, of hours of time and a career's worth of experience go into a successful trial.
What counts as successful? In a complex construction case it is a recovery that justifies all of the time and dollars invested. But a good case can often meet that objective without a trial. Today, mediators are skilled at resolving construction cases and probably 80% will settle without the necessity of a trial. As a consequence, few matters ever actually see the inside of a courtroom, and even fewer attorneys can claim to have selected a jury, much less obtained a successful verdict. But so what? Isn't it a good thing to mediate a case to resolution without the time and risk of a trial?
Certainly. But what helps to resolve cases without trial is the certainty that if the matter doesn't settle there will be a trial with a jury waiting to render a verdict and an experienced trial lawyer who will present the case to that jury. For the 20% of the cases that do not settle in mediation, an attorney will have to prepare for trial and present the case to the trier of fact—a jury or a judge. And every litigator is not necessarily a trial lawyer. There are many attorneys and law firms who file complaints, do discovery, and can settle a matter with the help of a good mediator, but not all litigators have experienced an actual trial of a complex construction case. A law firm which does not have attorneys with trial experience or partners who can claim to have taken cases to verdict will not present the opposition with a credible trial threat and will not obtain the most successful results in settlement.
Randolph Paul is one of the senior partners at Berding|Weil who can make that claim. He is a member of the American Board of Trial Advocates, an organization that recognizes only those attorneys who have tried cases to verdict. We asked Mr. Paul several questions about trial experience.
Alert: "Why is it important for a firm to have trial experience?"
Paul: "First, in today's construction defect litigation world, it is essential to have the expertise needed to try cases to maximize the recovery for cases that should settle. The defense will always exploit what they perceive as a weakness in the ability of their adversary. If they think you will not try the case, they will not offer full value even on cases that should settle. Secondly, some cases have issues that force them to trial, and the inability to effectively try a case will cripple the client's ability to achieve full compensation."
By Andrea O'Toole, Esq.
An attorney told our board that claims for a reserve shortfall in a condo conversion case are very difficult to settle because they are usually sold "as is." We were provided almost no reserves when our association took over from the converter of the project.
A condominium conversion is not just an "as is" apartment sold to individual buyers. It is actually a new product which added governing documents, various government approvals, certain upgrades, and most important, a detailed funding plan necessary to operate as a condominium. None of these existed when the project was just an apartment complex and had to be created and assembled by the converter. It is thus a new product that carries with it certain representations of fitness for the purpose for which it is intended. The converter's failure to provide an adequate budget means that you cannot operate the complex properly because it is missing a key component.
That failure is at least negligence on the part of the converter and can be the subject of a legal action. In cases of that type, "as is" provisions can be stricken as unconscionable by the courts. And they usually would not apply anyway because the plaintiff is usually the association, not the individual buyers, and the association did not sign any document containing that provision. Finally, an "as is" provision contradicts the intent of the California Department of Real Estate guidelines which require that known repair costs be included in the association's funding plan. If the funding plan is adequate, no problem, but where the converter has left the association without the funds necessary for proper maintenance and repairs, as in your case, the converter remains liable.
To read more on this topic, click here:
Condominium Conversion: Old Apartment or New Development?
MAKING ENDS MEET
Fiduciary Duty on a Limited Budget
By Steven Weil
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