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CASE
MANAGEMENT ORDERS
Step 9: Encourage Alternate Dispute Resolution
Like all other civil litigation, almost every construction defect case
is ultimately resolved by some method other than trial before judge or jury. Methods of
encouraging such alternate dispute resolution that have proved successful include the
following:
Use of court-appointed expert or experts. Such an expert can be
appointed before trial, on the court's own motion, at compensation fixed by the court, and
apportioned and charged to the parties (Evid. Code, §§ 730 and 731). The expert or
experts may be directed to investigate the alleged defects at the site and to report to
the court as to the party responsible and the cost of correction. If the case goes to
trial, the court-appointed expert can be called as a witness by any party or by the court
(Evid. Code, § 732). The parties may also call their own experts to testify, but may not
recover as costs the expert fees that they incur in doing so (Evid. Code, § 733). The
opinions of the court-appointed expert will obviously have great potential influence on
the outcome of the case, and judges who have used court-appointed experts regard them as a
powerful tool in encouraging settlement. If the case does not settle, however, the
appointment of an expert by the court may further complicate the case. Any party
disappointed in the expert's report can depose the expert, and might even sue the expert
alleging the breach of a duty to use die care in investigating the cause of the defects. A
comprehensive essay on the pros and cons of using court-appointed experts can be found in
the Federal Judicial Center's Reference Manual on Scientific Evidence (see bibliography).
Appointment of a mediator or a referee. At its present levels of
caseload and judicial resources, the Los Angeles Superior Court will seldom be able to
provide the services of a sitting judge to effectively act as a settlement officer in a
complex construction defect case. The number of separate issues involved in such a case
will require many hours of concentrated effort in order to effectuate a settlement, and
most judges will not be able to devote enough time to be effective as a mediator in such
case. The court can, however, encourage the parties to engage the services of a private
mediator, and the parties will usually be receptive to such an appointment. An alternative
to mediation is the appointment of a referee by consent of the parties, pursuant to Code
of Civil Procedure section 638. The referee can b authorized to supervise the exchange of
information between the parties, conduct settlement negotiations, and try any or all of
the issues in the case.
Setting a firm date for trial. Counsel in construction defect
cases tend to think that because of the complexities of such litigation they are entitled
to exemptions from the requirements of the Trial Court Delay Reduction Act and the rules
that have been promulgated to implement that statute. If the case is identified early as a
complex construction defect case and is effectively managed by the court thereafter, there
is no reason why even the most complex case cannot and should not be brought to trial
within twenty-four months after it is filed. A firm trial date is indispensable to
motivate the parties to expend the effort that is required to settle the case, no matter
what other measures are employed to encourage alternate dispute resolution.
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