Construction Defects

How to Choose a Construction Defect Lawyer

Become an Educated Consumer
You must become an educated consumer before choosing a lawyer. Do not accept, without confirmation, a lawyer’s self-serving description of what he or she has done in the past. Be careful of exaggerated suggestions of what you might be able to obtain through suit.

A Lawyer Shouldn’t Rush You Into a Lawsuit
Absent exceptional circumstances, such as the possible running of a statute of limitations or other deadline, no lawyer should rush you to the courthouse steps and into a lawsuit. If you have not tried to work things out with your builder-developer, your lawyer should nearly always recommend that you, sometimes with the lawyer’s assistance, try to work things out informally. If possible, and if it will not prejudice your legal rights, give the builder-developer the chance to do the right thing before you get involved in expensive, lengthy, and emotionally draining litigation. (Because the law now requires homeowners and builders to engage in a mandatory “Notice of Claim” process before a construction defect suit is filed, you may, unfortunately, need to consult with an attorney regarding compliance with these laws.)

If your home problems are serious and may lead to a lawsuit if not properly addressed by those responsible, our firm can help guide homeowners and homeowner associations through the Notice of Claim process, sometimes for a reduced or no charge.

Hands-On Experience
The lawyer should be experienced in dealing with the kinds of problems you face. You should find out the names of cases that your attorney has actually tried to a jury in Colorado, either individually or as part of a trial team, and who he or she represented in those lawsuits. Many people assume that simply because a lawyer says he or she is a “trial” attorney that the lawyer has lots of trial experience.

Realistic Expectations
Be careful of lawyers who brag about the “exceptional” settlements they have obtained, and find out how many of these settlements occurred in Colorado. Most consumers are not given enough facts or do not have the experience to judge whether a particular dollar-amount settlement was a good or bad result even when the settlement is in the hundreds of thousands or millions of dollars. Sometimes a lawyer may tout a large judgment he or she obtained, and even issue self-serving “press releases” about it, but not tell you that the judgment remains mostly unpaid because of the lawyer’s failure to properly investigate the availability of insurance coverage or the defendants’ financial capabilities. No one wants to become involved in a drawn-out lawsuit, go to trial, obtain a judgment, and end up holding an “empty bag,” unable to repair serious construction problems because there is no insurance money or assets to pay off the judgment.

Unfortunately, sometimes a homeowner or homeowner association’s time and money is better spent trying to fix what they can afford to fix rather than chasing an uninsured or “empty shell” defendant through the legal system: Your lawyer should have the courage to tell you this rather than recommend a lawsuit that is more likely to benefit the lawyer than the client.

References

A lawyer should be willing and able to provide you with references. Some lawyers ingratiate themselves with certain associations or trade organizations (such as consumer groups or property management associations) by making substantial monetary contributions to those groups. References by such organizations may be a useful tool, but they should not be your only tool. Another good source for references is a local attorney who has worked against the lawyer you are considering hiring, as well as the lawyer’s former clients. If your homeowner association lawyer makes a referral, find out if they have any current, or have been promised any sort of, “fee-sharing” arrangement with the law firm to whom they have referred you. Such “fee-sharing” arrangements can create conflicts of interest that need to be explored.

Insurance Knowledge
Because many construction defect cases involve complex insurance coverage issues, it is necessary that your attorney have an excellent understanding of these issues. Previous experience suing insurance companies, familiarity with the insurance industry and its practices, and knowledge of the hyper-technical provisions of insurance policies are needed for a lawyer to competently represent homeowners and homeowner associations in construction defect litigation. Does the law firm you are interviewing have lawyers whose practice focuses on insurance issues? Do those lawyers have demonstrated expertise in insurance and construction defects law, as reflected in their writing articles and books for, and giving speeches or teaching continuing legal education classes to, fellow lawyers?

Interview More Than One Lawyer
You should interview more than one lawyer no matter how impressed you may be with the first lawyer you meet or their website, or how highly recommended that lawyer may be. You should discuss what is expected of you as a client, how expensive, stressful, and time-consuming any proposed litigation may be, and what fee arrangements are available. Lawyers who suggest that you not interview other lawyers, or who say that if you do so they will not provide you legal services, who or falsely suggest they may be “booked up” by the time you make your decision are suspect and may be violating Colorado’s ethics rules in making these statements.

“Plan B” Settlement Experience
Homeowner associations and individual homeowners should try to work out problems with builders and developers. The lawyer you hire should be experienced with what is sometimes referred to as “Plan B” settlements, which typically involve roundtable meetings of construction professionals in an effort to develop a reasonable repair plan to be funded by those responsible for creating the construction problems. Your lawyers should demonstrate sufficient construction knowledge so that, in close consultation with your construction advisers, they can try to help ensure that the “Plan B” process is not misused to make “band-aid” repairs that may come back to haunt the owners years later.

Accessibility
Most construction defect cases are fairly complex, and often require a team of legal professionals and independent experts to supply the necessary legal and litigation support services. It may be unreasonable to expect any single law firm attorney to be involved in or be familiar with every detail of a complicated case. Often the trial of the lawsuit itself is a team effort. Because different courts sometimes schedule separate lawsuits being handled by the same law firm at the same time, and an attorney cannot be in two places at once, there can be no guarantee that the lawyer you were expecting to try your case will definitely do so. You should satisfy yourself that, if the attorney who you are anticipating trying your case is unable to do so, you have confidence in other law firm attorneys to do so.

Your phone calls and questions should be answered within a reasonable time, and you should be able to discuss your case and concerns directly with the lead responsible attorney or attorneys without undue delay.

Suit Cost Advances
While lawyers are allowed to advance litigation costs on behalf of clients, and our law firm frequently does this, any lawyer who takes your case and tells you that you are under no legal obligation to repay those costs to his or her firm may be violating Colorado’s ethics rules. Colorado’s ethics rules allow law firms to elect to receive repayment of costs contingent on the outcome of the lawsuit only from the proceeds of a lawsuit without the client having to personally reimburse those costs out of the client’s pocket.

Check with the firm’s former clients: Was the firm willing to make the necessary investment to properly prepare the case for effective settlement discussions and a powerful trial presentation, or did it attempt to work the case up “on the cheap”? Most medium to large multifamily cases require many hundreds of thousands of dollars in expert witness investigation, testing and report writing expenses, as well as the expense of deposing the other sides’ experts and other important witnesses.

Alternate Fee Arrangements
Explore alternate fee arrangements with your attorney and choose the one that best fits your needs. Some law firms who work on a contingency fee basis may also be available to work on an hourly rate or fixed-fee basis. However, no law firm is obligated to provide legal services on any case with which it chooses not to become involved for whatever reason.

Be Comfortable With and Confident in Your Lawyer and Law Firm
In the end, you should satisfy yourself that your lawyer is smart, experienced, understanding, respected in the profession, and ethical-and that you are comfortable putting your trust in that person’s and the law firm’s hands.

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