Berger Kahn’s expertise in real estate financing and development is matched by our specialization in the defense of developers and contractors in construction defect litigation. Our work in this field also includes the defense of design professionals.
We handle construction litigation matters ranging from alleged defects to delay and disruption claims. Using our skill and knowledge in this field, as well as our experience in insurance coverage and general real estate litigation matters, we create successful defense strategies.
Our approaches to construction defect litigation include:
•Building defense teams according to clients’ needs. Depending on client objectives, case size and other variables, we staff our defense team with attorneys who have engineering backgrounds, paralegals who specialize in construction documents and attorneys with construction dispute trial experience.
•Minimizing legal costs through alternative dispute resolution (ADR). Construction defect litigation is particularly suited for the ADR arena, where we often immediately seek to minimize costs by obtaining a court-appointed mediator. In these cases, we seek a case management order, ensuring the orderly progression of discovery; the free exchange of information between plaintiff, developer and contrctors; and the development of facts for effective mediation discussions.These and other early case management techniques allow us to avoid the necessity of expensive and cumbersome processes, including formal discovery.
•Understanding the insurance industry. Thorough understanding of coverage issues is essential to achieving successful case resolution. Our specialized knowledge and insurance-industry alliances allow us to successfully unravel complex coverage issues, identify what may or may not be a covered property damage claim, and communicate meaningfully with all parties including carrier-retained counsel, private counsel for the insured, the mediator, the client and the carrier.
•Utilizing sophisticated computerized databases to support assembled documentation. We provide clients and principals with various reports in matrix format so they can understand the complicated and interwoven liability and damage allegations that flow between plaintiff, developer and subcontractors. We also provide coverage charts and other information to assist clients, principals and the mediator in understanding the client’s insurance coverages.
•Thoroughly reviewing subrogation rights. When representing a developer, we are often called upon to evaluate the possibility of recovery from subcontractors and design professionals. We are also asked to explore whether other insurance coverages might be available to the insured and its participating carriers.
•Maintaining a network of leading industry experts. Our aggressive approach to construction defect litigation centers on our familiarity with leading experts in this field. We utilize experts whose opinions are respected by attorneys, mediators and juries alike — experts with optimum trial and arbitration skills and the presentation skills required for active and persuasive participation in mediation. Because these individuals are respected for not being unduly biased, their opinions tend to carry greater weight during mediation with opposing experts and mediators.
•Working closely with our experts to control costs. Before allowing our experts to perform any test or evaluation, we thoroughly review lower cost options with the client. We also coordinate between various professional disciplines, rather than allowing each expert to proceed on his or her own course of independent study.