Avoiding Construction Litigation
The world of construction is a complex one, full of rules and regulations to ensure that the safety of others is met to the best of standards. More often than not, these regulations are not met, or, clients are dissatisfied with the completed project. After investing a vast amount of money to be disappointed or met with a list of faults, can lead to heated disputes between contractor and client. This month we speak with Christopher Ling, who dedicates a lot of his work to construction litigation cases. He discusses with Lawyer Monthly issues the construction industry can face and the best way to avoid litigation in such cases.
As you are responsible for all litigation support through physical investigations, analysis, report writing and expert witness testimony, which phase poses the most challenges for you?
Physical investigations pose the greatest challenge because we do not know what the major issues are when we begin the discovery phase of a claim. What may appear to be a major issue may turn out to be unimportant after the physical investigation. And conversely, as the investigation process progresses, we may find major issues that have not yet been identified.
There is an art to investigating an existing building. We have techniques and equipment to examine the building before destructive testing. We use infrared technology, moisture probes and other hi-tech devices.
How have you seen the construction industry change over the years; how have these changes affected the lawsuits which occur?
The biggest change that I’ve seen in the construction industry is the lack of quality in the labour force. In years past, technicians that specialised in their trade were a great resource on how something should be installed. In the last ten years, the labour force has been less skilled. There are fewer technicians and fewer workers who have experience working with different types of materials or projects. Many workers in the construction industry do not know how to properly install these materials. Compounding this problem, good contractors are forced to utilising cheap, inexperienced labour to be competitive, which weakens the industry as a whole. It has been said that one cannot have price, timing and quality. If the quality goes down below industry standards, the potential for lawsuits goes up.
What is the best way to resolve a construction claim before it goes to trial?
I believe that construction claims start as a personality conflict and end with a business decision. The best way to resolve a construction claim before it ends up going to trial is to get all the information out to all of the parties involved including the attorneys and insurance companies. If we can get the facts out in the open and have a meeting of the minds, that will often allow all sides to make a business decision before the matter goes to trial.
What aspects are clients often unaware of, which can thus lead to easily avoidable litigation?
My mother told me, “If you do it right the first time, you won’t have to do it again.” In construction, multimillion dollar claims can often be avoided by using the right materials and techniques from the start, which may cost as little as tens of thousands during construction.
Sometimes, the “get to” costs are significantly more than the actual replacement cost of an item. Developers and contractors may cut corners and save a few thousand dollars during construction, but once the building is built and repairs need to be made to replace something that is behind the walls, it becomes very expensive.
Once a building is fully built and operational, there are a lot of other factors to be considered when making repairs. For example, if the building is occupied, you need dust control. It’s harder to work on a site that is being used; you have to avoid the occupants and work around the operations of the building and it’s harder to stage work.
You are a registered architect in a variety of states – do you think any of the states to which you practice in would benefit from adopting regulations from other US states?
Absolutely. Each state has the authority to determine what its building code will be, as well as its own process and perspective on what should be included in the building code. Since the code can be looked at as a record of previous mistakes, certain states have their own perspective based on things that happened in that state. For example, if a big fire happened, that state might then require additional features as part of the building code to prevent another such fire. It may be a good idea to implement those features in other states, but they don’t have the same perspective and history.
Conversely, some states have less of a regulatory stance on building codes where they allow professionals and builders to do what they think is best. Thus, there is a surprising variation in just the 250 miles between New York City and the middle of Pennsylvania. A few years ago, I worked on a project in the middle of PA where they didn’t have a model building code or building inspectors. Today, more states are adopting a uniform building code such as the IBC (International Building Code), which helps all jurisdictions move toward a unified building code.
Another big difference is that some states utilise public inspectors while other states allow inspections to be outsourced through a third party. Third party inspectors are professionals who have their own insurance and a greater liability if something is done wrong than a government entity would.
What difficulties do you face as an expert witness? In what ways could the legal sector advance to ease such difficulties?
As an expert, it is not good enough to take very complex construction issue and reduce it to just a complex issue. A good expert must take a very complex issue and make it clear and simple so that it can be understood by the layman.
It is an art to be able to simplify something as complex as the construction industry into something that is factual, true and easily understandable. Because the statement must be both technically correct yet understandable to the layperson.
In arbitration, it often helps when there’s a retired construction judge, a construction attorney and a technical expert on the panel.
About
Christopher D. Ling, AIA, NCARB, PP, LEED AP, CCT founded ARCHforensic LLC to assist attorneys and insurance companies in resolving construction litigation claims. Mr. Ling is directly responsible for all litigation support through physical investigations, analysis, report writing and expert witness testimony.
Mr. Ling has 28 years of experience in the construction industry as a constructor, Registered Architect and Professional Planner. His leadership, knowledge, experience and thorough analysis have been very effective in resolving construction disputes. He has a knack for explaining complex design and construction issues in a simple and clear manner. Mr. Ling has testified in deposition, mediation, arbitration and court in multiple states. Court appearances include federal and county courts.
Mr. Ling has managed project risk to avoid potential issues by reviewing and commenting on construction documents including: drawings, specifications, project controls, schedules, budgets and general conditions. He brings his experience in construction litigation to bear on risk analysis to help his clients avoid litigation.
Our firm specialises in providing professional services to help clients through the construction litigation process. While construction is complex, our experienced professionals understand client needs and objectives. We are focused and committed to excellence in each project and strive to build trust and exceed expectations.
Christohper D. Ling
Founder
408 Main Street
PO Box 441
Chester NJ 07930
