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The architect's role in litigation

Architects design buildings; attorneys practice law. These two highly skilled professions seem to have little overlap -- or do they?

According to Pietro "Pete" di Girolamo, AIA/CSI, of San Diego-based Building Analysts, a division of Salerno/Livingston Architects, "The general public doesn't always understand how far the expertise of an architect goes beyond designing buildings and drawing plans. Centuries ago we were charged with being "master builders" of cathedrals and public works. In today's world, our profession still requires a broad, 'generalist' understanding of society's built environment, and our skill set is valuable to attorneys in lawsuits."

An architect's role in a building starts at project conception and goes through construction. The architect interprets the owner's program, needs and intentions, and then creates a design that incorporates these desires. To ensure that the initial design intent remains intact, the architect stays actively involved throughout the building process, maintaining and interpreting the contractual responsibilities and relationships of the many players. Armed with this understanding of design and construction, architects are a proven and valuable resource to attorneys who practice construction law but often do not have the hands-on experience and technical training that architects possess.

According to di Girolamo, "Architects often serve as the quarterback of the technical and informational needs in the litigation process as we do in the building process. In architectural practice we bring together a team of technical consultants to make projects work. It's that very skill that we bring to building problem analysis in the litigation realm."

Architects such as di Girolamo and the other professionals at Building Analysts get involved in litigation in a variety of ways, but one of their fundamental roles is to collect and evaluate information to gain a full understanding of a problematic project, and then ultimately recommend an appropriate repair. It is a role that requires teamwork by interacting with the attorney and a variety of other professionals with specific expertise. "Our deliverable is a report to counsel -- here is what we found and here is how to fix it," says Jon Luft, AIA, NCARB and a member of the Building Analyst team.

Both di Girolamo and Luft enjoy and appreciate being a part of a larger community of professionals that forms around a case. In most construction litigation matters, there are multiple architects, representing or defending various parties in the case. The collective knowledge and expertise hopefully come together from both sides of the case to solve the matter in a reasonable way.

"We keep each other focused on the facts and appropriate standards of performance. When we all see the same things and compare solutions, it is more likely to bring about a settlement with fair and equitable results," di Girolamo says. Approximately 95 percent of the cases in which Building Analysts is involved are settled prior to going to court. However, the firm's professionals do act as expert witnesses and take the stand in a trial, if necessary.

Both di Girolamo and Luft emphasize, however, that their testimony is always based upon the standard-of-care of their profession. Architects must maintain an impartial position when making judgments and recommendations, and their professional licensing responsibility for the public safety and welfare should be reflected in their opinions. According to di Girolamo, who has 27 years in providing litigation support, "We believe our credibility must be maintained over the years. We don't always represent just one side in litigation matters, and need to maintain a balanced and consistent approach."

In Luft and di Girolamo's view, a valuable contribution to litigation that architects can make is to "bring their background in visual communication skills to help clarify the matters that are under dispute."

Stan Livingston FAIA, a founding principal of Salerno/Livingston Architects and Building Analysts, is currently involved in a construction defect matter in the Midwest that involves a high-rise building façade that was heavily damaged during a significant wind storm. The Building Analysts team was tasked with coordinating the roles of multiple specialists who each played an important role in determining how the connections in the façade failed. Building Analysts architects then took the information and utilizing their visual communication skills developed a visual presentation about the failure, which included computer graphics and animation, so it was understandable to all of the parties involved. Should the case move forward to trial, the visual presentation can be used to explain to the court and jury how the failure occurred, and what the contributing factors were.

The work and findings of an architect can dramatically change the scope of a case and aid the attorney's strategy early in the litigation process, and architects need to work closely with legal counsel from the onset of being brought into a matter. Effective forensic architects understand that different cases or attorneys may have different approaches to dispute resolution, and need to understand how their presentation of findings best work in concert with the case needs.

Communication is vital at every point in a project from design through litigation, if that is a course a project ultimately takes. Or, as di Girolamo says, "Communication, communication, communication. Good forensic work happens with great communication among attorneys and all the parties involved. In fact, many of the construction problems we uncover are to the direct result of a lack of communication. Whether we are working on investigating a problem or finding a solution to the problem, good communication is key."

Warren is founder and principal of TW2 Marketing.

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