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NICFI 2015

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ERIC J. MIERSMA, ESQ.

• Eighteen years of experience representing Southern California builders, contractors, design professionals, and business owners in all aspects of complex construction litigation, contract negotiation, risk management, transportation and insurance issues.

• Author and speaker on issues of contract negotiations, risk management, sustainable design and building, and moisture intrusion through concrete.

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ERIC J. MIERSMA, ESQ.

• Negotiated successful resolutions of millions of dollars of claims including:

• Arbitration of defective design, engineering, and

construction of soils, slopes, and improvements.

• Complex multi-party pre-litigation and litigation of high-rise condominium towers.

• Toxic tort wrongful death suit.

• Highway and traffic safety design and construction.

• Drivers and employers in transportation and trucking

litigation.

• Residential and commercial concrete slab design and construction litigation.

• Engineering and design professionals relative to

landslides, slope failures, subsurface failures, and architectural design.

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Legal Disclaimer

This presentation and any handouts are offered for general information purposes only. They do not constitute specific legal advice or opinion. They do not establish any attorney/client relationship. You should not act or rely upon any of the information contained within this seminar or any handouts unless first consulting with an attorney in your jurisdiction who is qualified in the area of law for which you require assistance.

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What does a Construction Defect Attorney Require and

Expect from the Flooring Litigation Expert?

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I. QUALIFICATIONS

A. Substantive

B. Practical

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I. QUALIFICATIONS

A. Substantive

1. Education

2. Experience

3. Certifications / Licensing

4. Credibility

5. “It” Factor

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Qualifications/Substantive/Education

• Degrees

• Schools

• Publications

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Qualifications/Substantive/Experience

• The MOST important qualification

• Must be the right kind of experience

• Must be recent

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Qualifications/Substantive/Certifications

• Industry Organizations

– NICFI

– Guidelines such as ASCE

• “Engineers, when serving as expert witnesses, shall express an engineering opinion only when it is founded upon adequate knowledge of the facts, upon a background of technical competence, and upon honest conviction.”

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Qualifications/Substantive/Certifications

• State licensing

– C-15 Flooring and Floor Covering Contractors License – A flooring and floor covering contractor prepares any surface for the installation of flooring and floor coverings, and installs carpet, resilient sheet goods, resilient tile, wood floors and flooring (including the finishing and repairing thereof), and any other materials established as flooring and floor covering material, except ceramic tile.

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Qualifications/Substantive/Credibility

• What is litigation history?

• How sound are credentials?

• Evidence of potential bias?

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Qualifications/Substantive/”It” Factor

• Presence

• Ability to “sell it”

• Quick on their feet

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I. QUALIFICATIONS

B. Practical

1. Availability

2. Tech Savvy

3. Organized

4. Scope / Budget

5. Insurance Considerations

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Qualifications/Practical/Availability

• What are litigation timelines?

• Do not underestimate time required.

• Deposition preparation / Trial

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Qualifications/Practical/Tech Savvy

• Litigation attorney’s expectations

– Primarily digital

– Fast search capabilities

– Control expenses

– Deposition and Trial

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Qualifications/Practical/Organized

• Quickly locate information

• Ability to pull opinions from multiple sets of data for investigation, carrier reports, mediation, deposition, trial

• Coordination with other experts

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Qualifications/Practical/Scope/Budget

• Services Agreement

• Budget

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Qualifications/Practical/Scope/Insurance Considerations

• Defense attorneys operate at whims of insurance company that retained them

– Strict budget guidelines

– Expert costs can quickly get out of control

– All work must be approved in advance

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II. Performance of the Work

A. Initial Investigation

B. Cause and Effect

C. Repair Recommendations

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Performance/Investigation

• Get the facts and gather data

• Have a strategy before going to the field

• Document review

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Performance/Cause and Effect

• Preliminary Opinions

• The problem with written reports

• Standard of Care

– Can you state with a reasonable degree of certainty in your profession and locality whether the contractor fell below its standard of care?

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Performance/Cause and Effect

• SB800 – Right to Repair Act (residential)

– Provides standards for construction

– “Foundation systems and slabs shall not allow water or vapor to enter into the structure so as to limit the installation of the type of flooring materials typically used for the particular application.”

– “manufactured products shall be installed so as not to interfere with the products’ useful life”

– Ceramic tile shall not detach.

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Performance/Repair Recommendations

• Repairs

– How do you fix the problem?

– Mediation v. Trial

– Allocations of fault

• Costs

– Typically done by general contractor

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III. Third Party Subpoenas

A. What is an “expert witness?”

B. What is a proper subpoena?

C. What are your responsibilities?

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Third Party Subpoenas/Expert

• An expert is one who offers an opinion related to a subject sufficiently beyond common experience so that it would assist the trier of fact, and based on matters known or made known to the expert, of a type reasonably relied on by the expert.

• Fact v. Opinion in construction defect context

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Third Party Subpoenas/Proper Subpoena

• Depends on state’s rules

– Generally issued by Court, in writing, and personally served on you

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Third Party Subpoenas/Responsibilities

• Do Not Ignore!

• Call the party that subpoenaed you and/or your client/attorney

• Does it ask for “personal appearance” or only documents (subpoena duces tecum)

• No opinions without payment!

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CONCLUSION

I. Qualifications: Substantive and Practical

II. Performance

III. Subpoenas

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NICFI 2015

Thank You!

Any Questions?

www.linkedin.com/in/ericmiersma emiersma@bph-law.com