At Pete Fowler Construction Services, we work as expert witnesses in construction defect litigation, construction claims, and property related insurance claims. Sometimes in claims and litigation matters people say silly things. They do this to try to prove their point when they run out of sensible things to say that support their opinions. Often, these silly things that people say and write are surprisingly difficult to refute from a logical and critical thinking perspective. Sometimes, refuting silly assertions can come down to our word versus theirs.
So, we developed our not-patent-pending exercise, "Proving the Obvious Using Google.” The thing to remember with this application is to separate the wheat from the chaff—the expert will still need to apply professional knowledge, judgement and experience in order to make this exercise successful.
Here are a few examples of silly assertions that we refuted using this deceptively simple exercise:
- An expert said that the "standard of care" in the building industry for a shower enclosure installer was that the shower enclosure should be completely 100% leak-proof and permanently sealed and no maintenance should be required. When we searched “shower enclosure standards” in Google, we found: (1.) “The Bath Enclosure Manufacturers Association is dedicated to raising consumer awareness of the advantages of bath enclosures as the quality alternative to shower curtains” (2.) That the ASTM committee, who composes the national standard, was not even addressing the issue of sealant use (3.) All sources we could find suggested inspecting sealant annually and maintaining nearly as often.
- We were hired by a plaintiff attorney after having represented the general contractor in a construction defect litigation matter that settled favorably to our client immediately following our deposition. The plaintiff attorney had taken an assignment of rights against the insurance company of another party and was pursuing a coverage claim, asserting that the building had not met the standard defined in the policy to be considered "collapsed." Ultimately, this was laughable, because when we entered the search term “building collapse,” almost none of the buildings on the first page of Google qualified as collapsed under the policy exclusions.
- In 2015, we had a case where the opposition argued that the interior of a multi-family residential repair project required three coats of paint (one primer and two top coats). Since there were many units, this made a significant difference in the cost. We searched "interior paint two coats versus three coats" and the results were virtually unanimous that under the vast majority of situations, with all but the darkest of base colors, two coats of interior paint were adequate.
- In 2016 and 2017 (two different cases) we were called to testify in construction litigation matters regarding the definition of "Fast Track Construction" and the impact of the concept on each of the projects. So, of course, we used our Proving the Obvious Using Google for "fast track construction" method. In the first case we were able to make clear the responsibility for the mess that had been made was mostly the responsibility of the Owner, Designer, and General Contractor for having started a project with an inadequate design. In the second matter, the Designer and General Contractor (owned by the same guy) argued as part of their defense that the project was being run as "Fast Track Construction." Unfortunately for the Owner (our client) they had no idea that the Designer-Contractor had thrust upon them responsibility for the risks inherent in Fast Track Construction.
How To: Step-By-Step
- Google a simple search phrase like "shower enclosure standards," "building collapse," or "interior paint two coats versus three coats."
- "Print" the results page to PDF and save the file with a name beginning with the date (ex: 2015-12-06), then the search term (ex: "Building Collapse"), then "00" so it sorts at the top of this set of files you're about to compile (Example complete file name: 2015-12-06 Building Collapse 00.pdf).
- Open the first item in the organically returned list (non-sponsored listings). We like to open this link in a new tab in the browser by using the right-mouse-click. Either screen shot or print to PDF (whichever looks better) and save the file with a name beginning with the date (ex: 2015-12-06), then the search term (ex: "Building Collapse"), then "01" so it sorts after of this set of files you're about to compile (Example: 2015-12-06 Building Collapse 01.pdf).
- Go back to the Google search page and open the second item in the non-sponsored list. Either screen shot or print to PDF and save the with a name beginning with the date, then the search term, then "02" (Example: 2015-12-06 Building Collapse 02.pdf).
- Continue on with links 3-10.
- Once the 11 files are compiled, save all of the files together in a single PDF file named 2015-12-06 Building Collapse 00 COMPLETE.pdf so that it will sort at the top of the list of these files. You can then delete all of the individual files.
- Consider composing a memo summarizing the contents and offering commentary of "What This Means." See related post Communication of Complex Information.