Both financially and emotionally, the impact associated with losing building cases cannot be underestimated.
Throughout nearly three decades of practising construction law, I have observed a number of practices which unfortunately increase the likelihood of this happening.
(1) Not engaging a specialist construction lawyer.
In the medical profession, general practitioners deal with relatively straightforward cases but refer more complex matters in areas such as dermatology, cardiology and podiatry to specialists in these fields.
Likewise, in the legal profession, complex building disputes should be handled not by general legal practitioners but rather those who specialise in the construction industry and have an intimate understanding of relevant building regulations and seminal cases as well as the ins and outs of the jurisdiction in question.
(2) Not engaging a top expert witness.
Recent years have seen a concerning trend whereby parties to disputes surrounding quality of workmanship engage ‘hired guns’ as expert witnesses to support their case without due consideration about whether the individual in question has both the appropriate degree of technical dexterity and the capacity for professional objectivity for his or her testimony to carry a sufficient level of weight at trial.
Often times, these people get ‘poleaxed’ during cross examination and the case is lost.
Depending on the nature of the alleged building defect involved, the best person to represent you could be an engineer, an architect or a building surveyor. These people are crucial to your case and should be chosen carefully.
(3) Failure to get letters of advice and status reports
Back when I used to work for major insurance companies, a critical document prepared early in the engagement outlined not only the facts of the case and the legal issues involved but also the chances of success as well as the likely payouts and costs involved in not only the most likely scenario but also the best and worst case scenarios.
Known as letters of advice, these documents help clients make informed assessments about the likelihood of successful outcomes as well as the costs of chasing such outcomes and should be provided by lawyers at the beginning of the case.
Likewise, clients should also ask for regular status reports providing updates in relation to the above matters as the case progresses.
(4) A desire for revenge
Legal cases are decided on the basis of applicable law, and any which are brought about primarily out of anger or other emotions as opposed to sound legal argument are unlikely to succeed irrespective of how strongly the aggrieved party feels they have been wronged.
Confucius famously quipped “if you want revenge, dig two graves.”
(5) Refusal to accept that a case is weak
Possibly the greatest cause of failure in building industry litigation revolves around a lack of willingness on the part of a client to accept when their case is not strong as well as a lack of courage on the part of their lawyer to speak frankly and hammer home the reality when this is indeed the case.
So, before you engage in your next building case, think seriously about these traps and how you might avoid them.
And remember, if you want to put a fire out, don’t fan it. Likewise, avoid dowsing it with the accelerants of anger, poor choice of expertise and myopia.