Posted On: December 20, 2006 by Donald B. Brenner

Selection of Experts

A lot of careful thought has to be given to what claims are worth fighting about, because the association will likely have scarce resources available to it. Much of the value that counsel brings to this process is counsel's experience and judgment and counsel's relationships with experts who are particularly skilled in disciplines that are responsive to the needs of the association.

Counsel also adds value to the process by making sure that the association does not take unrealistic positions regarding the claims that it makes. This means keeping client expectations within line of what we think we can probably get through litigation or mediation of each claim. It helps to have considerable experience when you are trying to give advice to a client about what their reasonable expectations should be regarding the amount that the association can realistically expect to recover from the litigation. This is one of counsel’s most important responsibilities because the decision of the client regarding how much to spend on the case and what to settle the case for are dependent upon counsel’s advice. Myriad factors need to be considered in making this critically important evaluation. Are there statute of limitations or statute of repose issues? If so, how much of a concern are they? How good are plaintiff’s experts? How strong are plaintiff’s proofs on liability and damages–especially consequential damages as is discussed in detail below? Can the proofs be understood by the jury? Do the defendants have any chance of dismissing all or part of plaintiff’s case on pre-trial motions? How long will trial take and does the client have the money to fund the case through trial? If not, is counsel willing to advance the costs and expert fees and take a piece of the recovery? Do the defendants have any assets? How much insurance coverage is there? What coverage issues are there and how can the plaintiff overcome them?

Counsel has to see and anticipate issues well in advance to prevent a client from spending huge sums of money taking discovery and then having claims unexpectedly dismissed before trial. For example, suppose you have a construction defect case involving a defective exterior cladding that was negligently applied by the applicator. The building was substantially completed in 1993 and the product was applied in 1992. The developer did not immediately sell all of the units. Instead, the developer rented out the majority of the units in the building. Eventually, in 2005, 12 years after substantial completion of the building, the developer sold off the last units needed to trigger transition of control of the association’s board of directors. The unitowner-controlled board hired experts who discovered severe water penetration through the defective cladding caused mold and other massive damage to the structural framing of the building. You sue the developer, all subcontractors, design professionals involved in selecting the material and the manufacturer and distributor of the material.

This case is a mine-field of complex issues. Counsel will have to evaluate how the statutes of repose and limitations will impact the handling of this case. If the defendants can prove that the developer-controlled board of directors of the association knew about the water penetration and failed to file suit beyond the statute of limitations, then it is possible that the unitowner-controlled association could have all of its claims against all subcontractors, design professionals, the manufacturer and distributor dismissed. This would leave the association with a remedy only against the developer and general contractor on the theory that during the period when they were in control of the board of directors of the association, they had a fiduciary duty to bring these claims against all possible defendants. Having failed to do so, they should be stopped from asserting the statutes as a defense.

Counsel have to be sensitive to these kinds of issues because community associations and other kinds of clients are simply not going to be sophisticated enough to understand that they even exist–let alone how to evaluate and deal with how they impact the association’s reasonable expectations for the value of the case, how much the association should be willing to invest in attorney’s fees, expert fees and other costs in order to get a fair return on their money.

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