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  • It is not uncommon to have a construction defect case be active in depository and in depositions for over 3 years. In average a CD case generate 60 depositions.
  • This means that we will apply the billing protocol for whichever territory that case is based at, and apply the billing rates for whichever territory the deposition was taken at. Example: a San Diego based case will follow San Diego billing protocol.

Final presentation2 Final presentation2 Presentation Transcript

  • Esquire Construction Litigation Solutions (ECLS)
    • Committed to the Paulson innovative tradition
    • 20 years of experience
    • Unique solutions to manage complex CD litigation.
    • 14 West Coast offices.
    • 50 offices throughout the United States.
    • Largest full-service construction litigation support company in the nation.
  • Strong Foundations Winning Team!
  • Construction Defect Overview
    • History of CD and how it started
    • CD litigation is case driven
    • About 45% of CD cases go to depositions
    • Average case will last between 18-24 months
    • Currently over 1300 active cases
    • Track number of cases to forecast future revenue
    • We average about 400 new cases a year
  • Our Regional CD Team
    • Djuana
    • Stacey
    • Doug
    • Christiaan
    • Tracy
    • Emidia
    • Kevin
    • Melanie
  • Commercial Construction Defect
  • Commercial Construction Defect
    • Plaintiff usually represents building owner bringing an action against contractors, sub contractors, banks etc
    • Schools, hospitals, shopping centers, office buildings, hotels etc.
    • Cases can be structural or financial
  • The Role of the Insurance Carrier
  • The Role of the Insurance Carrier
    • Developer
      • Self insured
      • Additional Insurance
      • Doug DJ needs to help on this one
  • Phases of CD Litigation
  • Phases of CD Litigation
    • In most jurisdictions CD cases are deemed by the court to be complex litigation due to the number of litigants involved
  • Phases of CD Litigation
    • The court asks that all litigants create a CMO to be approved by the court
    • The CMO designates the following
      • Appointment of Special Master or Mediator
      • A timeline for the life of the case
      • Designation of independent depository
      • Designation of deposition firm
      • Discovery protocols
  • Phases of CD Litigation
    • Discovery period
      • documents are deposited and reviewed by all parties
    • Mediations
      • determine case issues and any possible settlements
    • Depositions of Home Owners
    • Depositions of PMK’s
    • Depositions of Experts
    • Settlement or Trial
  • Prospecting for CD Cases
  • Prospecting for CD Case
    • Market Drivers
      • Key plaintiff and defense firms that specialize in CD
    • Industry issues
      • Chinese Dry Wall
      • Material Defects (plumbing, roofing materials)
      • Environmental
        • Toxic soil
        • Highway construction
  • Prospecting for Clients
    • Plaintiff firms that market to home owners
    • Law firms that represent HOA’s
    • Defense firms that represent developers or commercial construction firms
    • Specialty insurance carriers that underwrite contractors or sub-contractors
  • Market Trends
  • Market Trends
    • 2009 equal to previous two years
    • When home equity drops owners tend to look for other ways to increase value
    • Current home building decline should not result in reduced CD litigation for another 3-5 years
    • Comercial CD will continue to grow
      • LV example
    • California CD business model is moving east
      • Florida, Texas
  • .
    • WHAT IS A
  • Samples of Construction Defects
    • Foundation, Structural, Architectural, Concrete, Windows
    • Soils, Roofing, Insulation, Grading & Paving, Electric, Trim
    • Heating, Doors, Cabinets, Toilets, Showers, Bathtubs, Air
    • Conditioning, Fireplaces, Flashing, Stucco, Siding, Drywall,
    • Floor Tiles, Plumbing, Eaves, Street Lamps, Garbage
    • Disposals, Kitchen Counters, Closets, Stairs, Railings, Fire
    • Alarms, Views, Sprinklers, Irrigation, Carpeting, Painting,
    • Landscaping, Ovens, Dishwashers, Cabinets, Countertops,
    • Everything right down to the Kitchen Sink.
  • 4 Main Categories of Construction Defects
      • Design Deficiencies
        • Architectural
      • Material Deficiencies
        • Stucco, Deteriorating Wood Trim, Drywall, Siding
      • Construction Deficiencies
        • Improperly Installed Windows, Plumbing, Roofs
      • Subsurface/Geotechnical Deficiencies
        • Soils, Foundation
    • WHAT IS
  • Types of Construction Defect Litigation
    • Residential
      • Single Family Homes (SFH)
        • Individual Homeowner Claims
      • Homeowners Associations (HOA’s)
        • HOA will bring a claim on behalf of Homeowners
    • Class Actions
      • Allegations involving the exact same defects within the development
    • Commercial CD
      • Structural
      • Financial
  • Who Are the Major Players in a CD Lawsuit?
      • Individual Homeowners
      • Homeowners Associations (HOA’S)
      • Developers
      • General Contractors
      • Plaintiff Firms
      • Developer/General Contractor Defense Firms
      • Subcontractors (3 rd )Party Defendants
      • Insurance Carriers
    • Plaintiff’s file a lawsuit against the Developer
    • Developer files a Countersuit against the Subcontractors (3 rd Party Defendants)
    • Developer and Subcontractors are typically all insured for Construction Defect Litigation
    • Most Developers have a Self-Insured Retention (SIR) or deductible which must be met before the Insurance Carriers will contribute financially with the litigation
    • Each Insurance Carrier is represented by Counsel
    • Most Developers have Additional Insured Endorsements (AI’S) with the Subcontractors
  • Depository Basics
  • When First Deposit is Received
    • Check the Notice of Compliance and verify documents have been deposited at Esquire Deposition Solutions or Paulson Reporting and verify our correct address
    • Check for a Case Management Order (CMO) & Service List (SL) .
  • CMO Stipulations
    • Document Depository
    • Document depository shall be maintained at the offices of:
          • Name: Esquire Deposition Solutions
          • Address:
          • Phone No:
          • Fax No:
    • Our firm needs to be listed on the CMO as the official document depository
  • CMO Stipulations Cont’d
    • Document Production
    • CMO should state the manner in which documents are to be deposited
    • All pages should be bates labeled with a prefix of the party’s choosing followed by a six digit number.
        • i.e.: IVY 000001
    • What format are the documents to be deposited in
    • (Hard Copy, Electronic etc.)
  • Notice of Compliance
    • Standard Format includes
    • Depositing firm, attorney’s name and address
    • Name of depositing party
      • (Plaintiff, Dev, or Sub)
    • Case name and number
    • Title of deposit
      • (i.e. Job file, Expert file, Defect list, Cost of repair. Etc.)
    • Esquire name and address
    • Bates range and if applicable a detailed index
  • Case Binders
    • Master Binder : Kept with coordinators (Exceptions in some offices)
        • sign-in sheet for viewing documents
        • index of all deposits
        • document request forms
        • a case status report
        • check off-list
        • CMO , SL
        • copy of all Notices for the case
    • Depository Binder : Kept with the documents for the clients
    • Pleading Binder : Kept with the documents for the clients
    • Depository Order Binder : Kept with production of all hard copy orders
    • New Case Memo is sent out to all other offices
  • Making a Deposit
    • All notices shall be date stamped when received *Always*
    • Deposit is prepared
      • For hard copy deposits page are paginated
      • For electronic deposits (CD or DVD) the first and last number is checked.
      • If there are missing page/s then letter is sent out.
    • Coordinators ensure any stipulation the CMO states for deposits
    • NOC is scanned to the “p” drive.
      • An extra copy of the notice is printed for the Depository Binder
    • Deposit is entered into Solaria and notice is attached to corresponding job number.
  • Case Reports via Intranet
    • All ACTIVE depository cases in all offices.
    • Report includes;
      • All parties that have deposited documents
      • Date of deposit
      • Document description including to bates range, hard copy, size or electronic
  • Closing a Case
    • After notification is received via settlement agreement, signature pages or word of mouth;
    • Confirm with Plaintiff and Defense that case is closed
    • 2) Send out a “closed case letter” to all parties indicating our understanding the case has settled.
    • - includes an option for document disposal or pick up and a specified date to contact us by notifying us of their intentions regarding the documents in the depository. Storage fees may apply.
  • Scheduling for Construction Defect Cases
    • How it all Begins
    • C ase is set up in depository and once the first mediation or deposition is set, scheduling will:
      • Case Data Sheet
      • Reporter Sheet
      • Exhibit Sheets
      • Enter mediation/deposition in Solaria
      • Set up case in EsquireConnect (No more faxing!)
    Scheduling for Construction Defect Cases
      • Create a case folder with the Service List and Caption - Put in original Service list and any updated lists that you receive. Write the date at the top
      • Print out reporter sheet and put in case folder
      • Put depositions in Solaria database
      • Create Shared Calendar in ECN & send out invitations
      • Deponent Sheets: Homeowner, PMK/Percipient Witness and Expert
    •   *Standard Stipulation included in Reporter File - Give to lead Reporter.
    • Date (September 18, 2009)
    • CASE NUMBER: 98266
    New Case Set-Up
  •   Plaintiff vs. Defendant   Enclosed in this file you will find the following:   ______ Memos pertaining to case (Most current on top)   ______ Master Service List   ______ Case Caption   ______ Standing Orders   ______ Spellings Reporter Sheet
  • NOTE TO LEAD REPORTER:   IT IS YOUR RESPONSIBILITY TO INCLUDE IN THIS FILE THE FOLLOWING:   _____ CAPTION (TO BE USED ON TRANSCRIPT COVER)   _____ EXHIBIT INDEX PAGE WITH SHORTENED CAPTION   _____ STANDARD STIPULATION WITH SHORTENED CAPTION   _____ A MEMO EXPLAINING HOW THEY WANT THE EXHIBITS TRACKED   _____ ANY STANDING ORDERS   Please also include any other information another reporter may need to maintain continuity between witnesses. REMEMBER: Everything must be accurate and the same. Reporter Sheet
  • GREEN vs. HENRY CONSTRUCTION EXPERT – TRACK 3   REPORTERS: PLEASE WRITE CLEARLY AND GIVE US AS MUCH INFORMATION AS YOU CAN!!! GIVE FULL DESIGNATIONS - (i.e. Plaintiff soils Expert)   DATE  TIME DEPONENT NAME PARTY & DESIGNATION EXHIBIT NUMBERS REP. # TURNED IN?                                                                                                                                                                                                                                               Exhibit Sheet
  • Enter in Solaria
      • Enter in all depositions into Microsoft Access, viewable on-line
      • Fax out changes to all parties regarding the following days deposition
      • Call the setting party to confirm the schedule depositions for the following week
      • After confirming fax to all parties on the service list updated schedule
      • If the fax did not go through, would re-send or call and have client check their fax and attempt to re-send again
    • How does the client benefit from EsquireConnect?
      • Schedule, reschedule or cancel a deposition in a minute or less
      • Recall previously used information instead of retyping it each time
      • Share one calendar with a scheduling team, and still track who scheduled what, and when
      • Easily view how many times a deposition was rescheduled
      • Attach a deposition notice to the setting so that everything is taken care of at once
      • Share a case calendar with others on the team, or even opposing counsel, so that you can coordinate calendars more easily
      • Receive email notification of any settings, changes, cancellations or postponements
    • Calendar and GM decide which case has good visibility and good relationship with the main setting firm.
    • Create an email listing of Service List attorneys along with those responsible for setting depositions in the ca se or persons requ iring access to the Case Calendar
    • Send out an email to all those explaining ECN
    • Log on to ECN as Case Administrator (username & passwords supplied)
    • Create a shared calendar for the case
      • case name must be identical to Solaria case
    • Input users to the shared calendar 
    • Users will need to create an ECN account & join s hared calendar
    •   Users defaulted NOT to receive email notifications unless requested
    • Follow up with all users
      • Need to be prompted to accept ECN invitation
      • May need some training and support to get started
    • Generate a future settings report from Solaria and input to ECN by “Acting As” that client
    • Stay in contact with users and gather feedback.
    • E mail us ers w eekly the Future Schedule
  • Construction Defect Rates
  • Construction Defect Rates
    • Construction Defect rate structure 
    • Construction Defect rates vs. Regular rates
    • How are rates applied?
    • General rate protocol in CD cases
    • San Diego CD Standard Billing protocol
    • Costa Mesa Standard Billing protocol
    • Billing the Insurance Companies directly
    • Construction defect rate schedule for a determined market is not always the same rates applied to regular case because a construction defect case will certainly have:
          • Complex litigation
          • Several Parties
          • Multiple deponents
          • Voluminous Exhibits
    •         Therefore, rates must be tailored accordingly
    Regular vs. Construction Defect rate structures 
    • How are rates applied?
    • Rates are applied according to the CMO. If there are no special billing provisions detailed in the CMO, or special rates provided for the case then billing is based according to the territory rates and protocols.
    • General rate protocol in CD cases
    • Most territories apply the general billing rule where the noticing attorney bears the cost of the Original transcript.  However, it is not uncommon to see the following billing protocols:
      • Original transcript cost is split amongst all parties ordering a copy
      • Original transcript cost split amongst all parties present at the deposition
      • Original transcript split by all parties questioning the deponent
    • San Diego CD Standard Billing protocol
    • In San Diego, the CD rates are established on a sliding scale. The cost of the original transcript is included on the copy page rate. The more copies ordered, the lower we bill for the original
    • Costa Mesa Standard Billing protocol?
    • Costa Mesa bills the noticing attorney for the O&1. The noticing attorney is usually the attorney who initiated the questioning.
    • Billing the Insurance Companies directly
    • Once we obtain the insurance information in writing from the client, we can bill the insurance carriers directly. The insurance information should be entered in Solaria including the adjuster’s name, address, claim number, insurer’s name etc and any special instructions or references passed on to our billing department.
  • Access to Case Documents On-Line
  • Online Depository
    • If a client expresses interest in an electronic or online depository please contact Marty Steinberg or Doug Jarvis
    • Several options for online depositories
      • For shared depositories - IPRO or CaseShare
    • Very important to establish the clients needs when determining which online option is the best solution
      • Do they wish to code their documents?
      • Will files be accessible to all parties or only one side?
      • Is cost an issue?
  • Online Depository
    • IPRO, using the Inet server
      • hosted by ELS in secured Data Center in San Diego
      • all of the data maintained by us
      • basic viewer and search, inexpensive
    • IPRO allows clients to;
      • view, download and print documents
      • perform basic text and bates number searches.
    • CaseShare
      • third-party hosted platform
      • customized to fit a clients, very robust
      • full fielded and full text search capabilities
      • more costly
    • CaseShare will allow clients to;
      • code data, redact images, and review documents before making them available to all parties.
  • Strong Foundations Winning Team!