The Role of Constr uct ion Expert s in Defect Litigation: Perception, Reality and What Can Be Done About It

Presented By: Karl Molineux
Partner, Merrill, Nomura & Molineux LL P

Forensic experts are essential to the defect litigation process. Without them the problems that are at the heart of any dispute involving construction defects cannot be understood by attorneys, property owners or any of the other participants in litigation. At some level, all of the players understand and recognize the importance of experts to the resolution of construction defect disputes. However, the ability of the expert to play a meaningful role in defect litigation is often compromised by a number of factors. These include: attorneys usurping the role of the forensic expert, clients who limit the ability of the expert to properly investigate and understand the issues being litigated, clients who withhold payment to the expert, and a litigation system that is often driven by factors that have little, if anything, to do with the actual construction defects that are at issue. Although some of these factors are unavoidable, many can be avoided by undertaking an honest evaluation of the role of experts in construction defect litigation with a view to achieving an equitable and cost-effective resolution that benefits all concerned.
Westcon member and attorney Karl Molineux will address issues relating to how experts are perceived by the various stakeholders in defect litigation, the realities of the defect litigation system within which forensic experts have to work and how experts in defect litigation might be used to better effect. Some topics to be covered include:

• Defining defect litigation
• The goal of defect litigation
• The definition of an expert
• The changing role of the expert
• What attorney’s look for when selecting an expert
• When to retain an expert
• Plaintiff experts v. Defense experts
• Paying for Experts
• Expert Investigation
• Expert Reports
• Using Experts in mediation
• Experts and the special master process
• The use of technology
• Experts and depositions
• Experts and trial
• Suggested improvements to the system

Mr. Molineux will discuss these issues in the context of various litigation situations involving single family homes, condominium developments, hospitals, hotels, casinos, and landslides.
Mr. Molineux is a partner in the law firm of Merrill, Nomura & Molineux and has practiced law in California for the past 23 years. The primary focus of his practice is in the area of construction defect litigation in which he represents homeowner’s, commercial developments, hospitals, casinos, developers and contractors. While the majority of his work is on behalf of plaintiffs Mr. Molineux has also defended developers, contractors and sub-contractors in construction defect disputes.








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