In construction litigation and construction claims one term gets brought up time and time again: standard of care. Standard of care analysis is often used when there’s a delay, the building(s) have construction defects or when a party alleges that someone breached their contract.
In most cases, both plaintiff and defense councils designate expert witnesses to give opinions whether the alleged parties followed the standard of care in their contracted duties. But, why is it necessary to find the right expert to conduct standard of care analysis?
The reason behind it comes down to the responsibilities each profession has.
What is standard of care?
The concept Standard of Care has its roots in English Common Law, which states the public has the right to expect a person providing services will do their job in a reasonably careful and prudent manner, established by one’s peers under similar circumstances.
Over hundreds of years, the principle has stayed fairly consistent. For example, the American Institute of Architects has the following language stated in its form contracts in this way:
“The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.”
When is it necessary to conduct a standard of care analysis?
By its nature, construction is risky, and there are many ways a project can fall into a construction claim. When a claim has allegations that one or more parties were negligent in their responsibilities, that is the time where standard of care analysis is needed.
For example, in the case of construction defect litigation, the negligence claim is on the fact that a contractor didn’t responsibly adhere to construction quality standards. To prove or defend the claim in trial or arbitration, expert witnesses will need to analyze the workmanship.
In a construction delay claim, it's alleged that one or more parties were negligent in creating, following or updating the schedule. Finding the story behind the delay requires an expert to analyze the CPM schedule and other documentation to see if the parties were prudent in their responsibilities.
Analysis requires understanding the responsibilities of each party
Analyzing standard of care claims in construction isn’t as straightforward as you would think. There are a multitude of professions in a construction venture and many of them have responsibilities that are distinct from one another. To add more variables into the mix, the project delivery method they use can shift a number of responsibilities between the major party players. Professionals like construction managers can have drastically different levels of responsibilities, therefore CM standard of care is challenging.
Still, there are some responsibilities that stay the same in most projects. Here are a few examples:
Architect / Design Team Standard of Care: their designs and plans for the project include sufficient details that meet code and can be carried out by the general contractor.
General Contractor Standard of Care: they coordinate the construction work with the subcontractors effectively. They generally oversee the project.
Trade Contractor Standard of Care: their workforce is sufficiently skilled to perform the work and they provide the manpower needed to complete their portion in a timely manner.
Why proper standard of care analysis should be done by a seasoned expert witness?
From the definition, the level of service is established by the professional’s peers. While an attorney could probably find a suitable peer on another job site, retaining a seasoned construction expert witness is usually the best route.
The first reason for that is that their experience includes multiple projects of similar scope and type like the project in the claim. They can draw upon the “similar circumstances” portion of the analysis because they lived it. If you look at it through a statistical lens, more projects the professional worked on means they personally observed a larger sample size – it is more likely their experience and opinions will be based on the industry norm. They are also more likely to have experienced outlier situations, which they can recognize.
Secondly, everyone makes errors and mistakes. A seasoned expert knows this and has seen plenty of them in their past and how they were dealt with. That history of observing mistakes and taking part in fixing them sets them apart from young professionals.
That experience helps evaluating of the actions of the claim parties as well as identify situations where professionals can miss an important detail despite their best efforts to do their job well. After all, standard of care is that it doesn’t imply perfection. Longtime professionals can also tell when clients or other parties are pushing unrealistic expectations.
The third (and some would argue most important) reason is a seasoned expert witness has experience communicating their analysis in a clear effective manner. All litigators have learned that getting a clear message across to a mediator, judge or jury is a huge part of winning.
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