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Claims & Litigation

Comparison of Common Law (US) and Civil (EU) Litigation Practice

Comparison of Common Law and Civil Litigation US vs EU_ SOCIAL 2018-11-21 B.png

To make sense of our research on “A Comparison of Construction Claims Handling Practices in the U.S. and the E.U.” we must understand the litigation processes in both the E.U. and U.S. There are similarities and differences to both approaches.

What is a Lawsuit?

A civil lawsuit or a legal action is a method of dispute resolution. Two or more parties have some kind of dispute which they are unable resolve it amongst themselves. Sometimes parties may have used some kind of alternative dispute resolution process like negotiation, mediation (where a neutral third party tries to help the parties reach a resolution) or arbitration (arbitrators are hired to act as judges in a private version of a trial) instead of a complaint being filed in the appropriate court.

If the parties leave it up to the legal system to work out their differences then to certain extent they give up control of the outcome and are left to advocate for their interests, providing facts, witness testimony, evidence and legal arguments in the hope they’ll prevail.

There’s virtually no limit to the types of parties who could be involved in a civil action, from individuals to multi-national corporations, government entities to non-profit organizations. Courts can handle disputes that are in the hundreds of dollars to potentially limitless amounts of money. The outcome of a civil lawsuit may just impact parties living next to each other or countries in different parts of the globe.

What are the Key steps in a Civil Lawsuit in the U.S.?

Generally, litigation in the U.S. goes through a number of steps or proceedings, which can vary from jurisdiction to jurisdiction, including,

  • Pleadings

  • Discovery

  • Trial

  • Appeal

Pleadings

To start the litigation process the plaintiff files a complaint. It lays out the basic facts of the dispute, states the legal theories for recovery and what’s sought to resolve the matter (which could be a sum of money or specific action by the defendant, the party against whom the complaint is filed). The defendant responds to the allegations with an answer, states possible defenses and may make counter-claims against the plaintiff.

The defendant may ask the court to dismiss the complaint in whole or part, either because what’s being claimed doesn’t amount to breaking the law (a motion to dismiss), or, with the filing of affidavits, claim since there are no material, disputed facts in the case the defendant is entitled to judgment as a matter of law (motion for summary judgment). Normally if a complaint is dismissed, in whole or part, the plaintiff has an opportunity to amend or re-file the complaint.

Discovery

Discovery is a critical part of the civil lawsuit process. Through it both parties should have all the relevant facts of the dispute. With the benefit of these facts the complaint may be amended or could be withdrawn. With newly acquired information a defendant may file a motion for summary judgement. The parties may also have a greater understanding of the strengths and weakness of the case and choose not to risk a negative outcome at trial and negotiate a settlement.

Discovery allows the parties to submit written questions to each other, ask for copies of documents or evidence and ask each other to admit or deny statements of fact. During depositions parties and witnesses are asked questions under oath by attorneys for both sides. Not only can depositions produce facts that the opposing party didn’t know before but both sides see first-hand how well both sides’ witnesses may perform during a trial. How well or poorly a party’s witnesses do may be critical to the decision to proceed to trial or settle the case.

Discovery can be simple and straightforward or drawn out and complex. Parties can object to questions and requests and seek protective orders to limit release of information. One party may seek court help to obtain information, evidence or to depose an individual. Because of the importance of discovery parties may be very aggressive in seeking information or trying to prevent the other party from obtaining it.

Trial – the Third Step

Most civil lawsuits are resolved prior to trial because it can be very expensive, consume a lot of time and energy and depending on the nature of the dispute, emotionally draining or painful. Without a resolution agreed to by the parties it will be decided at trial. Disputed facts and verdicts can be decided by a judge or jury.

Armed with what they learned during discovery the parties tell their stories through documentary evidence, evidence in the form of objects, graphs or charts, testimony of parties and witnesses. Both sides try to simplify the issues and create sympathetic narratives they hope will win the day. Attorneys on both sides try to show the opposing side’s witnesses aren’t credible and their arguments don’t make sense while at the same time bolstering and polishing their version of events.

Trials start with opening arguments and end with closing arguments by the attorneys. Attorneys can ask the judge to rule on evidentiary and legal issues during the trial and object to submission of evidence and of questions to their witnesses. The plaintiff has the burden of showing, in most cases, it’s more likely than not its version of the truth is more credible, the law was broken in some way and the plaintiff is owed an amount of money and/or some action by the defendant for it to be made whole.

The judge or jury makes its decision which may be a dismissal for the defendant or a total or partial victory for the plaintiff. The plaintiff should be awarded the relief sought if the legal claims are successful, though it may get much more or less than it sought.

Appeal

The appeal is a process by which rulings by judges and the outcome of trials may be reviewed by panels of judges. The appeal process isn’t an opportunity to re-try a case, though an appeal can be based on a claim that a verdict wasn’t based on the evidence used at trial. This is a difficult and usually unsuccessful approach. Generally, a party that feels aggrieved by a decision because it violated the law or a rule of procedure can ask the issue go back to the trial court so the decision can be corrected or at least reviewed again by the judge.

After both sides submit briefs containing their arguments why a decision should be overturned or upheld attorneys have an opportunity to make legal arguments before the appellate court judges. They can ask questions of the attorneys and seek additional briefs on particular topics of interest. Eventually the appellate court issues a decision to uphold or overturn the lower court decision. If it’s overturned often lower courts will be issued directions on what to do next. The decision need not be unanimous. The majority opinion is the final decision.

What are the Key steps in a Civil Lawsuit in the EU?

In most E.U. countries the civil lawsuit process is defined by the civil procedures of each of its 28 countries. Generally, the civil lawsuit process in the E.U. breaks down to,

  • Pre-trial pleadings

  • Pleadings

  • Production of Evidence (Discovery)

  • Trial

  • Appeal

Pre-trial Pleadings

In the pre-trial pleadings phase the parties, without the involvement of the court, try to resolve the disputes between them. The parties make various requests, with letters or notices sent between them, where the parties attempt to substantiate their positions on the merits of the case. If the parties fail to reach a resolution the civil lawsuit process continues.

Pleadings

The aggrieved party submits the complaint, with documentary evidence, to first instance court in accordance with the country’s applicable procedural laws, starting the legal action. The party receiving the complaint typically answers the complaint and produces all available evidence to support its arguments that the complaint be dismissed.

Production of Evidence (Discovery)

In E.U. countries the burden of production of evidence (discovery) rests on the claimant/plaintiff, the party seeking the remedy.

Trial

The plaintiff has the burden of proof., however the plaintiff does not have the discovery rights similar to the legal system established in the U.S. To further substantiate then any evidence required has to be requested to the court. The court further assesses the necessity for it and if deemed necessary then requests the opposing party to provide it in accordance with the law. If the dispute wasn’t settled and goes to trial, the judge presumably will have looked over all evidence and paperwork submitted to the court and will guide the parties through the trial. The parties call witnesses and produce more evidence, which is relevant or important to the case at hand. The judge generally acts in an investigatory role, seeking out the truth of the situation then applies the law.

Appeal - the Fifth Step

The appeal is a second stage litigation process, because in almost all cases, the case at hand, an appeal will be submitted to the Court of Appeal (the procedure on how that’s done will vary from country to country). The Court of Appeal consists of two general directions first is an ordinary appeal and second is cassation. An ordinary appeal, when a case is appealed every aspect of it is reconsidered and a new examination of the facts may take place if necessary. However, a court of cassation has limited freedom, especially where the facts are concerned. In cassation it is required by law to base its deliberations on the facts as established by the lower court and cassation would mean quashing a judicial decision on a point of law, including procedural law.

Major Differences Between U.S. and E.U. Civil Litigation Process

Production of Evidence (Discovery)

Discovery is much more limited in the E.U. There are no requests for production of documents, interrogatories or depositions. Documentary evidence is produced by the parties during the course of the litigation.

Pre-trial Pleadings

There are no motions to dismiss or for summary judgement in the E.U., which can be critical tools by defendants in the U.S. system to end a legal claim early in the process or at least narrow its scope. This can greatly reduce the cost for a defendant and the outcome of these motions is an important factor in whether a case will settle and if so, for how much.

Trials

No European civil procedural system uses juries, except the court of Great Britain/United Kingdom. Litigation costs in the E.U. are generally much lower than in the U.S. While in the U.S. the majority of civil cases will settle before a trial verdict, the opposite is true in E.U. where most civil cases are decided by the judge and most of those decisions are appealed.

Roles of Experts/Expert Testimony

This is one of the most important differences. Both regions use expert testimonies differently.

In U.S. civil cases the use of experts is common, especially in more complex cases. In the E.U. it’s rare for a civil case to include use of expert witnesses. If there is such a witness he or she will be named by the judge to help determine the facts, not by a party to help put its case in a favorable light, nevertheless parties may provide their experts as well.

The Roles of Judges and Lawyers

In the U.S. judges are more of a director who must consider court procedure and prior court decisions. The judge is neutral and normally doesn’t intervene in fact-finding except to interpret and enforce rules of evidence.

In the E.U. litigation system a judge is more a referee and the trial is a more investigative process. E.U. judges are also not strictly bound by case precedent, except the courts of Great Britain/United Kingdom, however high authority, even though formally not binding, is possessed for the pronouncements of the Highest or Constitutional Courts. Case law is more informative than dispositive. Greater sources of law for judges and lawyers are legislative statutes and codes.

E.U. lawyers need to demonstrate that statutory law applies in the case for a particular fact so their role is more to advise, inform and point the judge in the right direction, and the procedure largely is in writing. U.S. lawyers engage in more debate, oppose what the other party seeks and are more active, use much more case law, and try to convince the jury and/or judge to believe their client’s side of the story.

In both systems, judges and lawyers interact with each other and depend on each other.

The Scope of the Appellate Process

The difference in this area is at least formally significant. In the civil systems, an appellate court has plenary authority to review an inferior court's judgment, not only as to issues of law but also as to issues of fact.

The underlying theory is that the civil codes determine the substantive basis of the case and the higher court judges have a more authoritative understanding of the code's provisions. The underlying civil-law theory regarding issues of fact traditionally has been that evidence is a legal science and that the strength of an item of evidence is governed by a set of rules. Note

In most civil case appeals in the U.S. the evidence on record is accepted as the fact finder (judge or jury) accepted them. That deference doesn’t happen in the E.U. In common law systems the appellate court reviews for “error” in jury-tried cases and “abuse of discretion” in most judge-tried cases. Note

The E.U. appellate process in civil cases may look more appealing to lawyers and their clients, because they see the first instance courts as a preliminary run or try-out of the case.

Conclusion

It’s worth noting the differences for each type of litigation process: jury trials, the roles of judges and lawyers, the scope of appellate process/review, the role of experts and production of

evidence. These differences significantly impact each litigation processes within each region. They do so by impacting the length and cost of litigation process.

When approaching it from a legal theory point of view, both systems have defined their litigation processes based on their own values concerning justice, fairness and equality.

Articles in This Series

  1. Introducing Our Latvian Interns

  2. Construction Risk & Claims Management in the US vs. EU

  3. Construction Management Process in the US vs. EU

  4. Comparison of Common Law (U.S.) vs. Civil Litigation (E.U.) Practices (THIS ARTICLE)

  5. Top Issues in Construction Projects in US vs. EU (COMING SOON)

  6. Construction Risk Management in the US vs. EU (COMING SOON)

  7. Construction Claims Management in the US vs. EU (COMING SOON)

References

  1. Civil Procedure Rules for European Courts by Geoffrey C. Hazard Jr

  2. Civil Lawsuit – The Civil Litigation Process Explained In Steps by TorHoerman Law, LLC

  3. Major Differences When Litigating Under Common Law or Civil Law by Howard Colman (Partner at Colman Coyle Solicitors )

  4. Common Law And Civil Law: A Brief Comparison by Legal Language Services

Analyzing & Monetizing Construction Claims & Defects: Claim Analysis 101

Introduction

PFCS President, Pete Fowler, presented the first webinar of 2017 on January 12 at 10 a.m.

“Analyzing & Monetizing Construction Claims: Construction Analysis 101” is a free webinar that delves into the basics of what we do here at PFCS. This program covers a variety of subjects and could go by many titles:

  • Building Performance Analysis and Budgeting 101
  • Analyzing and Monetizing Construction Defects
  • How Building Owners and Managers Should Decide What Needs Fixin’... and More Important, What Doesn’t
  • Level 1 Analysis
  • Making Smart, Budgeting-Conscious Decisions About Construction

Pete Fowler has been a professional cost estimator for more than 20 years and through this webinar, he will follow up on one of our previous webinars about Building Performance Analysis by discussing how is related to the budgeting process.

Virtually all construction or property-related decisions should be made with costs in mind, but some people are afraid of math. We can help.

Whether you are a lawyer, insurance professional, property owner or manager, you need to be able to focus on the “vital few” issues and ignore the “trivial many.” That means knowing how much things cost; Not to the penny, but rather a reasonable approximation.

The best place to start when working to make smart economic decisions is on the big, expensive issues. You begin by chopping a project into logical parts and estimating the cost of those chunks so you can see both the big and small pictures. The earlier in the process you accomplish this, the better!

Learning Objectives

  • Why decision making about buildings needs to include performance analysis and cost analysis.
  • How to do a “Level 1” performance and cost analysis so you know the big picture early in the process.
  • Review case studies and real world examples of projects related to analysis and monetization of construction claims.

Program Outline

  1. Introduction
  2. A Sensible List
  3. Evaluating & Prioritizing
  4. Analyzing Construction Defects
  5. Budgeting Construction
  6. Roles & Responsibilities
  7. Conclusion

This program is approved for one hour of CLE for attorneys in California and Nevada, pending in Oregon, and pending for insurance adjusters registered with the California and Texas Departments of Insurance.

Terminating a Construction Project Before Completion: Do's, Don'ts, Claims & Litigation

Introduction

On October 19th at 10 a.m., Mike Villalba & Pete Fowler presented a FREE webinar called "Terminating a Construction Project Before Completion: Do's, Don'ts, Claims & Litigation". Construction is expensive. The spectrum of construction professionals ranges from the pinnacle of professionalism and quality to criminal negligence. Sometimes projects must be terminated prior to their completion. The process is usually expensive and complicated. However, if you use a standard structure that takes into consideration the contract documents, construction industry standards, the construction scope, budget and schedule, then you can get to the end as quickly and inexpensively as possible. Sometimes it's not quick or cheap, but structure makes analysis as efficient as possible.

"Terminating a Construction Project Before Completion" is for everyone involved in the building or buildings business, including owners, attorneys, adjusters, property managers, real estate professionals and anyone else involved in construction or real estate. If you can understand that no matter where you are in a construction project gone bad, you're not trapped, then you can negotiate from a position of strength. We will begin by explaining the roles and responsibilities of the parties in the construction business. Next, we will explain the PFCS Construction Claim Analysis framework. Finally, we will review case studies that demonstrate how to terminate projects from the perspectives of the owners and the contractors.

Learning Objectives

  • Review the basic roles & responsibilities in construction. 
  • Learn a framework for analyzing a construction claim. 
  • Discuss how damages are calculated after a contract is terminated. 
  • Strategize how one might salvage a construction project rather than terminate.
  • Review case studies and real world examples of projects that were terminated before completion.

Program Outline

  1. Introduction
  2. Contracting 101
  3. Construction Claim Analysis Framework
  4. RTFC
  5. Calculating Damages
  6. Salvaging a Project
  7. Conclusion

This program is approved for one hour of CLE for attorneys in California, Nevada and Oregon. This program is also approved with the California Department of Insurance.

Comments from Attendees

  • "I liked the photos and discussion of issues including the retaining wall.  It was kind of a wake-up call on that homeowner with a trust who could afford to fight a GC, R.E. the poor work done, overruns and challenge/lawsuit.  Great outcome, by the way!!  Oh - I also like the initials RTFC lol."
  • "Very informative and useful."
  • "I enjoyed it!"
  • "Helpful, gives us ideas to use in future negotiations." 
  • "Loved the case studies!"
  • "Great presentation with experienced, qualified, knowledgeable & seasoned speakers!"
  • "It was good!" 
  • "Very good, especially if you are considering building a project."
  • "I thought it went well and was informative."
  • "Great program and timely for me."
  • "Good program; good subject."
  • "Always enjoy your presentations. I learn something every time!"
  • "Pete was very good and the presentation was informative." 

Resources

  • For a copy of the presentation and backup materials for this program, send us an email to info@petefowler.com.

Adjacent Property Disputes

Introduction

Good fences make good neighbors. Unless your neighbor built their fence on your property!

We have been dealing with these claims and litigation since the company was founded. By reviewing Adjacent Property Dispute case studies, we will apply PFCS' Construction Claims Analysis Method to disputes including property line encroachment, view obstruction, tree roots causing damage to neighboring property, and architectural control violations in community associations (HOAs). 

The program is intended for anyone in business who regularly deals with buildings and real property, particularly property and community managers, insurance professionals, and legal professionals. 

Webinar

Register now for our webinar “Adjacent Property Disputes.”

Date: Thursday, June 20, 2019
Time: 10 a.m. PT
Duration: 60 minutes

Program Outline

  1. Introduction

  2. PFCS Construction Claims Analysis Method

  3. Comparing & Contrasting

  4. Monetizing the Claim

  5. Conclusions & Recommendations

  6. Trial Presentation

  7. Conclusion

This program is approved for one hour of CLE for attorneys in California. Pending approval in Nevada and Oregon. This program is not approved with the California Department of Insurance.

PFCS Construction Claims Analysis Method

PFCS Construction Claims Analysis Method 

  1. Collect: We organized and analyzed all applicable documents and information. 
  2. Plan and budget our work.

  3. Issues/Allegations: We make a Sensible List that served as an outline of the analysis. 

  4. Investigation: We apply PFCS Building Performance Analysis (BPA) Process.

  5. Analysis: We execute an issue-by-issue inquiry of all available information.

  6. Conclusions: We often document our conclusions for each issue in a comprehensive report.

  7. Present: We deliver expert deposition testimony and trial or arbitration testimony when necessary.


Analyzing Construction Defects

Introduction

On May 26th, 2016 at 10:00 A.M., Alex Prokop presented a one-hour webinar called Analyzing Construction Defects. This program is for insurance and legal professionals who hire and manage expert witnesses and expert teams. It is also for attorneys, adjusters, property managers, real estate professionals and anyone else involved in construction or real estate; as they are likely to face a major construction or disclosure related insurance claim or litigation at some point in their careers. Indeed, many such professionals deal with construction related claims as a common occurrence in the course of their work. 

Analyzing Construction Defects is for anyone who is faced with or might have to deal with construction litigation related to physical problems or allegations of defects in buildings or construction. We will explain what a construction defect is, how the process of construction defect litigation flows, present a framework for working through the complexity of potential defects and the issue-by-issue analysis of each potential defect, and discuss appropriate investigation standards. 

Learning Objectives

  • Introduce the fascinating world of construction defect (CD) litigation and the major players. 
  • Review CD case studies.
  • Discuss the difficulty of defining the term Construction Defect. 
  • Explain what information should be gathered and organized to make the analysis as easy and complete as possible. 
  • Introduce the PFCS Solving Building Problems Method.
  • Discuss how issues or allegations can be organized and analyzed in a systematic way, one-by-one. 
  • Introduce common deliverables created during a defect analysis. 

Program Outline

  1. Introduction
  2. Construction Defects Defined
  3. Construction Defect Litigation 
  4. Solving Building Problems
  5. A Sensible List
  6. Analyzing Construction Defects 
  7. Conclusion

This program is approved for one hour of CLE for attorneys in California. Pending approval in Nevada and Oregon. This program is not approved with the California Department of Insurance.

Click here to view previous posts about this program.

Expert Qualification, Designation & Declarations

Introduction

On March 16th, 2016 at 10:00 A.M., Pete Fowler and Paul Kushner presented a one-hour webinar called Expert Qualification, Designation & Declarations. This program is for insurance and legal professionals who hire and manage expert witnesses and expert teams. 

Having the right expert or experts on your side when it comes to litigation can make or break a case. Expert Qualification, Designation & Declarations is a one-hour overview of the process for successfully (1.) deciding what expertise you need, (2.) finding qualified experts, (3.) designating experts in litigation, (4.) working together to compose expert declarations, and (5.) navigating some of the complexities of managing a team of experts. We will discuss some of the nuances and complexity of selecting experts with significant litigation experience versus deep, specialized industry experience, but little or no experience with testimony. Experts with the right combination of knowledge, skill, experience, and the ability to communicate technical information to non-technical people, so that the audience can make informed and intelligent decisions, is a rare package. And some people you think would make a great expert just fold like a lawn chair under cross-examination, even when they are right! Throughout our program, we will be reviewing case studies and examples of awesome work. We will begin with a quick review of another PFCS seminar, Expert Witness Success, which is closely related to this material. Let us know if you'd like to review recordings of either of these programs, or if you'd like a presentation delivered in your office. 

Learning Objectives

  • Overview of expert witness success
  • Overview and discussion of expert qualifications
  • Discussion and review sample expert designations
  • Discussion and review sample expert declarations
  • Discussion of expert teams and avoiding duplicative testimony

Program Outline

  1. Introduction
  2. Expert Witness Success
  3. Qualifications
  4. Designations
  5. Declarations
  6. Expert Teams
  7. Conclusions

This program is approved for one hour of CLE for attorneys in California. Pending approval in Nevada and Oregon. This program is not approved with the California Department of Insurance.

Allocation of Responsibility of Construction Defects

Introduction

On February 16th at 10:00 A.M., Pete Fowler and Mike Villalba presented a one-hour webinar called Allocation of Responsibility of Construction Defects.

Allocation of Responsibility for Construction Defects is for everyone who needs to understand how the costs of construction defect allegations should be distributed to responsible parties. The
program is for construction, insurance, legal and property professionals; particularly those who regularly deal with construction defect litigation. The process for allocating responsibility of
construction defect allegations is mostly “science,” but some critical parts include the “art” of applying professional judgment. The program will outline the mechanics of the process including: (a.) making a sensible, allocatable list of defects, (b.) assigning values to each defect issue or category, (c.) making a list of all the parties who might be involved and understanding what each of them did on the project and where, and (d.) assigning supportable portions of responsibility for
each issue.

Learning Objectives

  • Understand the mechanics of allocating defects to responsible parties
  • Understand which parts of the process are “science.” That is, mostly unarguable.
  • Understand which parts of the process include the “art” of applying professional judgment. That is, arguable. 
  • Review some case studies and real world examples of allocation in action.

Program Outline

  1. Introduction
  2. Analyzing Construction Defects
  3. A Sensible List
  4. First Pass Allocation Methods
  5. Applying Professional Judgement
  6. Fancy Stuff
  7. Conclusions

This program is approved for one hour of CLE for attorneys in California. Pending approval in Nevada and Oregon. This program is not approved with the California Department of Insurance.

Click here to view previous posts about this program.

Landlord-Tenant Disputes

Introduction

One of the more common project types our company is handling these days is landlord-tenant disputes. Sometimes these disputes arise during the lease, related to building failures like leaks or floods. But more often they occur at the conclusion of a lease, related to allegations of deferred maintenance that the owner's claim are required by the terms of the lease, or "improvements" that the tenants have made during the lease term that will cause significant costs to be incurred by the owner to prepare the building for a new tenant. Landlord-Tenant Disputes is a one-hour walk through Pete Fowler Construction Services’ (PFCS) Construction Claims Analysis Method, applied to claims resulting from landlord-tenant disputes. No two claims are the same, but our analytical method walks us through a professional investigation and analysis, similar to how the scientific method aids in discovery of the workings of our natural world and technological advancements, regardless of the specifics of the claim. 

A recent case study proves that PFCS is uniquely qualified to serve as expert consultants in these projects due to our experience in building performance evaluation (Inspection & Testing), Construction Management, Building Lifecycle Management, and Claims & Litigation. Every year we work on projects as widely varied as single-family residences; multi-family and mixed-use developments; commercial, institutional, and industrial construction; and low-rise, mid-rise and high-rise buildings. Since our active client list always includes Property Owners & Managers, Builders & Developers, Contractors, Product Manufacturers, Insurers and Lawyers, it's hard for anyone to make a case that our opinions are biased.

Webinar

Register now for our webinar “Landlord-Tenant Disputes.”

Date: Wednesday, May 15, 2019
Time: 10 a.m. PT
Duration: 60 minutes

Learning Objectives

  • Introducing a framework for conducting a professional investigation related to landlord-tenant disputes.

  • Gaining a big-picture perspective on handling landlord-tenant dispute investigations from a building expert perspective.

  • Review numerous case studies.

  • Discussion of options for report and presentation formats.

  • Looking at actual project deliverables.

Program Outline

  1. Introduction

  2. The Claim

  3. The Method

  4. Property Condition Assessment

  5. Estimate Analysis

  6. Putting it all together

  7. Conclusions

This program is approved for one hour of CLE for attorneys in California. Pending approval in Nevada and Oregon. This program is not approved with the California Department of Insurance.

List of Statisticians

At PFCS, we take a scientific approach to our analysis, and we do a better job at performing unbiased statistical analysis on our projects than any other experts we've seen. We've written internal standards on how this should be performed, and have even delivered a Random Selection and Extrapolation of Construction Defects program to the public. Often, it is necessary to collaborate with a statistician to validate our method at trial. While we've personally worked with a hand-full statisticians over the years, we were interested to see who else our clients have worked with in the past. So we sent the following email to all of our current and past clients:

I need a little help. I need a good referral.

I am looking for a good statistician to work with on projects (legal cases, mostly), and to refer to clients (usually lawyers or insurance companies). He or she will need to evaluate and testify about the problems with extrapolation based on poor sample selection methods in building performance evaluations (generally construction defect cases). In addition, s/he will need to evaluate my company's investigation method, including our random selection protocol, and be able to explain in a scientific but understandable way... that it's awesome ;-)

The results were impressive. We received many responses with statisticians up and down the west coast and beyond, even as far as Georgia! A brief break-down of our results:

  • 1,737 emails sent to our clients
  • 437 responses
  • 109 referrals
  • 64 statisticians
  • 4 with 5-9 glowing recommendations each

The following 4 statisticians were highly recommended by several clients each:

Ronald Farina, Ph.D. - Farina & Associates 5160 Idylwild Trail Boulder, CO 80301 T: 720-938-6874 E: ronaldfarina@comcast.net

Gary Lorden, Ph.D. - LordenStats / Professor of Mathematics - California Institute of Technology Pasadena, CA T: 626-395-4349 E: glorden@caltech.edu

Duane L. Steffey, Ph.D. - Exponent 149 Commonwealth Drive Menlo Park, CA 94025 T: 650-688-7262 E: dsteffey@exponent.com

John R. Weeks, Ph.D. - San Diego State University Distinguished Professor of Geography San Diego, CA T: 619-594-8040 E: john.weeks@sdsu.edu

The full results of our survey are below:

  1. Ronald Farina, Ph.D., Farina & Associates - T: (720) 938-6874 E: ronaldfarina@comcast.net
  2. Gary Lorden, Ph.D., LordenStats / California Institute of Technology - T: (626) 395-4349 E: glorden@caltech.edu
  3. Duane L. Steffey, Ph.D., Exponent - T: (650) 688-7262 E: dsteffey@exponent.com
  4. John R. Weeks, Ph.D., San Diego State University - T: (619) 890-8452, (619) 594-8040 E: john.weeks@sdsu.edu
  5. Tim Anderson, Portland State University
  6. Jay Bartroff, USC - T: (213) 740-1044 E: bartroff@usc.edu
  7. Dr. Paul Baum, Ph.D., CSU Northridge - T: (818) 497-7759 - Cell, (818) 677-2413 - Office, (818) 677-6079 - Fax E: paul.baum@csun.edu
  8. Carol Benassi, Zurich North America
  9. Stefan Boedeker, Berkeley Research Group, LLC - T: (310) 499-4924 - Direct, (213) 705-1324 - Cell E: sboedeker@brg-expert.com
  10. Brian Bontempo, Mountain Measurement - T: (503) 284-1288 E: brian@mountainmeasurement.com
  11. Linda Brown - T: (478) 918-6464 E: brownla@mindspring.com
  12. Thomas Carroll, Thomas Carroll & Associates - T: (702) 263-8044 E: statisticalforensics@gmail.com
  13. Dr. Louis Anthony ""Tony"" Cox, Ph.D., Cox & Associates - T: (303) 570-2643 - Cell, (303) 388-1778 - Office, (303) 388-0609 - Fax E: tcoxdenver@aol.com
  14. Paul DeBoer, RGL Forensics - E: pdeboer@us.rgl.com
  15. Steve Duree, Duree Barton P.C. - T: (303) 293-9966 - Office, (303) 437-0361 - Cell, (303) 320-0436 - Home E: sduree@duree.com
  16. Steve Eso - T: (760) 435-9663 - Home, (760) 650-6273 - Cell E: s_eso@yahoo.com
  17. Adrian R. Flessing, RGL Forensics - T: (714) 740-6161 E: aflessing@us.rgl.com
  18. Bob Fountain, Portland State University - T: (503) 725-5204 E: fountainr@pdx.edu
  19. Bruce Gates - E: brucegates@comcast.net
  20. Phillips Gorman - T: (626) 744-3540
  21. Kyle Jacobson, Taylor, Jacobsen - T: (303) 987-8999
  22. Joe Kanada
  23. Dr. Colleen Kelly, Kelly Statistical Consulting - T: (760) 846-6763 E: kstat.consulting@gmail.com
  24. Jeffrey H. Kinrich, Analysis Group - T: (213) 896-4544 E: jkinrich@analysisgroup.com
  25. Joeseph A. Krok, PhD, The Claro Group, LLC - T: (213) 784-3079 - Office, (310) 213-7776 - Cell, (213) 452-6556 - Fax E: jkrock@theclarogroup.com
  26. Mark Kuga, Delta Economics
  27. Jim Lackritz, San Diego State University
  28. John Landry
  29. Richard Laton, CSU Fullerton - E: wlaton@fullerton.edu
  30. Jeff Leedom, Price Waterhouse Coopers - E: jeff.leedom@us.pwc.com
  31. Robert Lenk, RDLenk - T: (805) 350-0969 E: consulting@rdlenk.com
  32. Bill Lepowsky - T: (510) 524-2101
  33. M. Laurentius Marais, William E. Wecker Associates, Inc. - T: (415) 898-2255
  34. Phil Martinson, Phil Martinson Engineering, Inc. - T: (503) 557-1555 E: phil@pmeng.com
  35. Richard McCleary, UCI - Social Ecology Program - T: (949) 824-7280 E: mccleary@uci.edu
  36. Jim Meeker, UCI - Social Ecology Program - T: (949) 824-1463 E: jwmeeker@uci.edu
  37. Jubin Merati
  38. Chris Money, Hagen, Streiff, Newton & Oshiro Accountants - T: (714) 750-4007, (949) 251-1133 E: cmoney@hsno.com
  39. Cynthia Mulvihill, Geico
  40. Jeya Padmanaban, JP Research - T: (650) 559-5970 - Office, (650) 559-5980 - Fax E: jeya@jpresearch.com
  41. Ana Panorska, University of Nevada - T: (775) 784-6548 E: ania@unr.edu
  42. Mike Phillips
  43. Dean Plager, Quantitative Decision Support - T: (603) 431-1120 E: plager@comcast.net
  44. Dr. S. James Press, UC Riverside - T: (951) 827-4241 E: jpress@ucr.edu
  45. Dan Ray, Hemming Morse - T: (415) 836-4000
  46. Rose Ray, Ph.D., Exponent - T: (650) 688-7264 E: rray@exponent.com
  47. Jay Sickler, Cogence Group - T: (503) 467-7900 - Office, (503) 467-7901 - Direct
  48. Steve Simmons - T: (714) 350-2220 E: sballsim2@gmail.com
  49. Steve Sloman
  50. Roland Sorge
  51. Scott Stewart
  52. Michael Sullivan - T: (415) 777-0707 E: michaelsullivan@fscgroup.com
  53. Greg Taylor, Taylor, Jacobsen - T: (303) 987-8999
  54. Audrey Thompson, Datalogix
  55. Bill Thompson, UCI - Social Ecology Program - T: (949) 824-6156 E: wcthomps@uci.edu
  56. Robert R. Trout, Ph.D. - T: (760) 944-9721 E: ecnxprt@aol.com
  57. Ted M. S. Vavoulis, Vavoulis & Weiner - T: (213) 817-6600
  58. Lynne Weber, Duff & Phelps - T: (650) 798-5500
  59. William E. Wecker, William E. Wecker Associates, Inc. - T: (415) 898-2255
  60. Stephen Wexler, Wexco - T: (310) 306-3877 E: wexler@wexco.net
  61. Gerry Williams - T: (503) 318-1174
  62. Jack Williamson, 3C Advisors & Associates
  63. Michael Willoughby, UC San Diego - T: (213) 880-0789 E: mwilloughby@ucsd.edu
  64. Dr. Jeffrey Wilson, Arizona State University - T: (480) 965-5628 - Office (480) 213-4460 - Cell E: jeffrey.wilson@asu.edu

Project Management Skills for Litigation

On February 28th, 2013, Pete Fowler presented a 1-hour webinar called Project Management Skills for Litigation.

Successful management of projects is hard, especially with lots of parties involved and more things to do than you can keep together in your mind, or even in your day-planner. A Project Management system is the closest thing we have to a guarantee of success.

This presentation covered: difficulties and barriers to project management; steps for successful project planning; the science of project management; planning for and managing meetings while tracking accountability; time management and weekly plans; and tracking your time for billing.

A complete list of the dates for the remainder of our webinars in 2013 is listed on our Events page. The programs are recorded and available to PFCS clients free of charge. If you are a client and would like access to this program, or if you would like to schedule a PFCS Expert to deliver a presentation live at your conference or in your office, please contact us at marketing@petefowler.com.

Comments from attendees:

  • "I thought the program was well put together. I could relate to it as I've handled large due diligence lists for multi-million dollar bond financings, which are large projects. The presenter was knowledgeable, funny and spoke clearly (not too fast, not too slow)."
  • "As usual, the program was well organized and interesting."
  • "It was informative to find a logical way to lay out a complex litigation case. I work for a plaintiff's firm and have to juggle data/information for upwards of 50 defendants on some cases."
  • "The program was very helpful to understand & deal with issues concerning management, planning, expectations and costs when retaining experts."
  • "Well presented with excellent information, as are all of your webinars."

Pete Fowler Presents Construction Claims Management at ACIG's Fall Safety/Claims Meeting in San Antonio, TX 9/12-13/2012

After having been introduced to PFCS through the Construction Defect Webinar Series, ACIG invited Pete Fowler to present our Construction Claims Management program at their Fall Safety/Claims Meeting in San Antonio, TX. ACIG sponsors numerous opportunities for its members to stay abreast of all the construction and insurance industry changes. These meetings and workshops offer great forums for the exchange of information as well as ample opportunities to listen to quality speakers from both its member companies and outside industry experts; leading construction and insurance professionals are always included as session speakers. ACIG’s workshops are a great combination of fascinating topics, fabulous locations, and quality speakers that provide an interactive atmosphere for discussions, enabling attendees to engage in meaningful conversations and dialogue regarding the pressing issues that confront risk, safety and claims managers. Every Spring and Fall, safety, claims and risk management professionals from all over the country are invited to the ACIG Fall Safety/Claims Meeting to network and learn about issues affecting their organizations.

The American Contractors Insurance Group (ACIG) writes insurance policies and provides related services to the construction industry.  The policies cover workers compensation, general liability, automobile liability and subcontractor/supplier default exposures.  The services include underwriting, supervision of claims, policy filings and issuance, loss and quality control, engineering services and brokerage placements. The ACIG mission is: “To save lives, prevent injuries and reduce the overall cost of risk and insurance for our members by (1) effectively reducing losses, (2) providing a stable market with quality services, (3) utilizing our group purchasing power and (4) creating equity.”

Trial Presentations

On August 13, 2012 Pete Fowler presented a 1-hour webinar called Trial Presentations.  Pete explained the fundamentals to consider when retaining an expert witness, managing the development and delivery of opinions, reports and testimony for success.

This is the sixth in our Construction Defect Seminar/Webinar Series which will be presented throughout 2012. A complete list of the dates for the remainder of the series is listed on the Events page of our website. The programs are recorded and available to PFCS clients free of charge. If you are a client and would like access to this program, or if you would like to schedule a PFCS Expert to deliver a presentation live at your conference or in your office, please contact marketing@petefowler.com.

Comments from attendees:

  • “I am new to claims, and found the program easy to understand and very informative.”
  • “Very informative and helpful. Pete provided some interesting insights based on his own trial experience.”
  • “Program was informative and amusing.”
  • "I thought it was helpful to know the experts point of view."
  • “I always find your programs easy to follow and entertaining, with good information.”

Allocation of Responsibility for Construction Defects

On May 10, 2012 Pete Fowler presented a 1-hour webinar called Allocation of Responsibility for Construction Defects. They explained the step-by-step method for planning, creating and delivering estimates for construction defect repairs, and discussed how estimates can be summarized, analysed and compared based upon the level of detail and exactitude required.

This is the fifth in our Construction Defect Seminar/Webinar Series which will be presented throughout 2012. A complete list of the dates for the remainder of the series is listed on the Events page of our website. The programs are recorded and available to PFCS clients free of charge. If you are a client and would like access to this program, or if you would like to schedule a PFCS Expert to deliver a presentation live at your conference or in your office, please contact marketing@petefowler.com.

Comments from attendees:

  • "It was clear and concise and I was impressed by the integrity demonstrated."
  • "Very good.  Some good practical advice in a format that didn't waste my time."
  • "Very informative to obtain an expert's point of view of the defects/allocations and not being charged for the consult."
  • "I thought it was very informative and timely.  It helped to explain the process that goes into assigning percentages of fault to subcontractors...there is a method to the madness."
  • "I appreciated that the presenters used straight talk, and did not digress into unhelpful story-telling.  The program was full of information directly on-topic.  Thank you."
  • "I thought the presentation was well done and conveyed the information in a logical and well organized manner."
  • "It was informative.  The visual drawings during the presentation on how to allocate costs and set up diagrams were very helpful."

Construction Defect Estimating and Analysis

On April 18, 2012 Pete Fowler presented a 1-hour webinar called  Construction Defect Estimating and Analysis. Pete explained the step-by-step method for planning, creating and delivering estimates for construction defect repairs, and discussed how estimates can be summarized, analysed and compared based upon the level of detail and exactitude required.

This is the fourth in our Construction Defect Seminar/Webinar Series which will be presented throughout 2012. A complete list of the dates for the remainder of the series is listed on the Events page of our website. The programs are recorded and available to PFCS clients free of charge. If you are a client and would like access to this program, or if you would like to schedule a PFCS Expert to deliver a presentation live at your conference or in your office, please contact marketing@petefowler.com.

Comments from attendees:

  • "Great information. Always enjoy Pete's seminars and his common sense approach. I do a lot of estimating and got some great ideas on how to format and layout a project for estimating."
  • "It was interesting, clearly presented, and offered a very practical view of estimating, from start to finish. It provided me with ideas of what to look for in my review of estimates in the future."
  • "Program scope was comprehensive and very relevant to my area of litigation practice. Written materials provided are excellent."
  • "The program gave me more insight into preparing an estimate and what I should expect from an estimator."
  • "It was informative and enlightening for me as a community manager. Great job!!!"

 

Analyzing Construction Defects

On March 21, 2012 Pete Fowler presented a 1-hour webinar called Analyzing Construction Defects. Pete explained what a construction defect is, how the process of construction defect litigation flows, presented a framework for working through the complexity of defect allegations, including the the PFCS issue-by-issue analysis method of each, and discussed the most appropriate investigation standards.

This is the third in our Construction Defect Seminar/Webinar Series which will be presented throughout 2012. A complete list of the dates for the remainder of the series is listed on the Events page of our website. The programs are recorded and available to PFCS clients free of charge. If you are a client and would like access to this program, or if you would like to schedule a PFCS Expert to deliver a presentation live at your conference or in your office, please contact marketing@petefowler.com.

Comments from attendees:

  • “...very well prepared and thorough.”
  • “Excellent as usual.”
  • “Valuable insights”
  • “Informative, innovative, delightful.”
  • "The presentation struck a good balance between an overview and graphic illustrations of how data is gathered to formulate expert opinions."
  • "I always enjoy the Pete Fowler presentations as they are straight forward and provide a lot of good information."
  • “... I was pleased to see how much research and analysis the Fowler organization performs on each case.”
  • “Very informative and well organized.”
  • Great overview!

Read more about our Analyzing Construction Defects program

Common Construction Defects

On February 23, 2012 Pete Fowler presented a 1-hour webinar called Common Construction Defects - A Pictorial Review. The objective was to frame the most common issues in context, so that the big picture can be seen when construction defects become an issue in the professional lives of the participants. They learned what the most common defects are, what they look like, and the most common causes,  including a pictorial overview of the dozen most common defects. This program is an update to Pete Fowler’s often quoted and referenced article, Common Construction Defects, published by the Journal of Light Construction in October 1998.

This is the second in our Construction Defect Seminar/Webinar Series which will be presented throughout 2012. A complete list of the dates for the remainder of the series is listed on the Events page of our website. The programs are recorded and available to PFCS clients free of charge. If you are a client and would like access to this program, or if you would like to schedule a PFCS Expert to deliver a presentation live at your conference or in your office, please contact marketing@petefowler.com.

Read more about our Common Construction Defects program

Builders Right to Repair Bill: California's SB800

Senate Bill (SB) 800, the ‘Builders Right To Repair’ bill was signed into law September 20, 2002, and took effect for every living unit sold in California after January 1, 2003. The bill specifies the rights and requirements of a homeowner to bring a construction defect action, contains building standards and functionality requirements for new residential units, and gives a detailed pre-litigation procedure. SB 800 was developed as a compromise of various factions of the building and legal communities to address the problems of the home building industry. The 9,000 word bill states the intent of the legislature is to improve the procedure for the administration of civil justice in construction defect cases.