Many of you reading this article have been involved in at least one, if not several construction defect actions in recent years. This type of litigation in itself can be extremely frustrating, regardless of the merit of a defect claim. Often times, frustration in these cases stems from a variety of perspectives. Not only does a construction defect claim affect a builder's sense of pride in workmanship, other issues arise such as finding available insurance coverage and having to deal with defense attorneys (like me). This article provides some tips for building a productive relationship with your defense attorneys in order to limit frustration and strengthen your defense position in the process. (Unfortunately, my suggestions involve more contact with your lawyer, not less.)

Organized defense in litigation is like having a strong warranty program-if there is consistent communication and responsiveness, complaints and frustrations can be kept to a minimum. One of the main criticisms I have heard from plaintiffs' attorneys is that defense attorneys are unorganized and tend to avoid the issues until the last possible moment. Although the Calderon process assists in early disclosure of the issues, many cases do not go through that process. As we all know, the plaintiffs' position is often enhanced due to investigation of the site and documentation of a possible defect before ever giving notice of a claim. It is usually expected by the plaintiff that the builder will need to "catch up" and review the details of the project at the onset of a claim. This and any extended delays in offering a defense position usually makes plaintiffs' counsel feel superior. The atmosphere of a case can be affected and improved simply by providing a rapid response (similar to the rapid response to a homeowner under a warranty program). This response does not have to be finalized but being proactive in these cases rather than reactive will set the tone for a strong defense.

Therefore, it is extremely helpful if the builder maintains organized files for the actual construction of the project, the builder's insurance coverage and that provided by others. Although this type of litigation may, someday, be handled more efficiently and economically through wrap-up insurance policies, it is important to remember that actions are still being filed for residential projects built in the late 1980's. Therefore, a builder can greatly assist in its own defense by locating and organizing files as soon as it receives notice of a claim or is served with a lawsuit. It is also important to realize that not all residential construction defect actions go through the Calderon process. Ordinarily this process would provide sufficient time for the builder to locate and organize its files and investigate the claims. However, an increasing number of actions are filed by individual homeowners, not the Home Owners Association. These actions may involve hundreds of homeowners, yet the plaintiffs need not comply with the Calderon process. Thus, locating the files early in the process can be invaluable to a strong initial position.

In these matters, defense counsel typically have certain constraints placed upon them by insurance companies. There are requirements for status reports, cost containment and providing litigation plans. There is no reason why the client (or insured) cannot expect certain requirements to be met by the defense counsel as well. It has been my experience representing builders, subcontractors and design professionals that active client participation assists in building a strong defense. I suggest that shortly after defense counsel is assigned to a case, the client request a meeting to discuss that counsel's philosophy and implementation of case handling. It is important that the client and counsel discuss their expectations with regard to communication and flow of information, up front.

At this initial meeting, it is also very helpful to obtain input from the job foreman or superintendent of the project who can offer insight about the sequence of events during construction. If that person is no longer working for the company, which often happens, locating them early is important. In addition, it is helpful to have the project's job file and plans available before the initial meeting, so that defense counsel has the opportunity to digest the contents of the file and ask questions at the meeting. Since many claims are made several years after the work is performed, an early discussion of the scope of work can refresh memories and perhaps provide valuable insight for the defense strategy. If there are any issues that may become problematic during litigation, these can be identified and addressed early on so they do not become an impediment to resolution.

Keep in mind that certain claims may lend themselves to early resolution via mediation or repair before any significant investigation begins. Certain cases can be resolved quickly and economically before involving numerous parties. An early meeting to discuss the type of case and best strategy for resolution is critical since there are often other options beyond the traditional protracted and adversarial litigation that may prove beneficial.

This early meeting also provides information as to what insurance coverage issues may exist as well as what other parties should be involved in the litigation. Since defense counsel have time demands when filing cross-complaints, early discussion of claimed defects (including those made to the builder before litigation ensues) will assist defense counsel in getting potentially culpable parties involved at an early stage. Early involvement by subcontractors and suppliers is one of the aims of the Torlakson bill. However, as with the Calderon process, some cases do not fall within the purview of these two cases, so early involvement may only be ensured through traditional legal methods.

Depending on the size of the claim, you may want to insist on periodic in-person or telephone meetings to discuss the progress of the case. This will ensure that defense counsel focuses on your case strategy since the "big picture" can often get lost when counsel are busy arguing and posturing. Make sure that defense counsel is also made aware of ancillary issues such as deductibles, self insured retentions, gaps in coverage, renewals, policy exhaustion and like items. When it is time to mediate the case, any outstanding insurance issues should be discussed so that resolution among carriers is complete, if possible. The mediation process is often stalled because the insurers have not communicated with each other or are not aware of circumstances affecting participation in the defense. Any assistance the builder can provide in advance can circumvent some of the common problems that postpone resolution as investigation costs continue to rise. It can be quite helpful for defense counsel to host a meeting with the builder and insurers so that any issues among the carriers can be identified and dealt with early in the case. As with many adversarial situations, face-to-face meetings can help the various people relate to each other more quickly, and avoid "poison pen" letters and posturing. If your defense counsel does not suggest such a meeting, you should do so in the event there are numerous carriers and coverage counsel involved. Although defense counsel should not take positions regarding coverage, counsel can certainly facilitate early resolution of coverage disputes among carriers so that said disputes do not become an impediment to reasonable resolution of a case.

Also with regard to mediation, it can be quite beneficial for a representative of the builder to attend at least some portion of the mediation sessions. This also sets a tone that the builder is concerned with the outcome of the litigation and stands behind its work. Mediators tend to show more deference to the actual client rather than a party whose only face is its lawyer. This can be likened to having the client present at trial. A jury may be more persuaded if it is obvious that the builder devotes time to being present. Since these types of cases do not proceed to trial frequently, more emphasis should be placed on a mediation strategy.