“To model how flames turn buildings into ashes, the nation’s leading fire researchers don’t play with matches over the sink. Instead they burn down entire homes, cubicles and warehouses.

“At the National Institutes of Standards and Technologies, researchers set huge fires under a 40-foot-long by 30-foot-wide exhaust hood that is connected to an $8 million control unit.

Link to Article

“Manhattan prosecutors are investigating whether the leading concrete testing company in the New York area, which has been hired to measure and analyze the strength of the concrete poured at some of the biggest construction projects in the city, failed to do some tests and falsified others, officials involved in the inquiry said on Friday.

“The investigation has uncovered problems with tests the company conducted on concrete poured over the last two years at the new Yankee Stadium in the Bronx and the foundation of the Freedom Tower in Lower Manhattan, along with as many as a dozen other projects, said several of the officials, who spoke on the condition of anonymity because the investigation is continuing.

“The investigation has also raised questions about past work done by the company, Testwell Laboratories Inc., at a wide range of sites around the city. Construction and inspection practices in the city are already under scrutiny as a result of a series of fatal accidents and arrests on corruption charges.”

This article is fascinating on a number of levels. First, who would have thought that the New York Times would run an article that goes into such detail about concrete testing, specifically slump tests? Secondly, and perhaps more notable, law enforcement is conducting an investigation into the practices of a noted high profile concrete testing firm. But it isn’t just any law enforcement division, it is the Manhattan District Attorney Office’s Labor Racketeering Unit. Racketeering? That’s a serious charge.

It should be noted that Testwell Laboratories, Inc. (website appears to be down – here is the Google cache of the site) provides much more than concrete testing, offering a full range of testing services including geotechnical, metallurgy, construction materials, petrographic and chemical. Testwall Laboratories, Inc. describes itself (ironically) as “an independent full-service testing, inspection, quality control and quality assurance organization that has earned a valued reputation for reliability and professionalism in the construction industry“. [Emphasis added.]

Link to Article

California’s residential construction industry is approaching uncharted waters as a housing slump, tight liability insurance coverage and new laws for handling construction defect litigation all collide.

The collision makes an already challenging business environment fraught with even more danger. Some attorneys, especially those representing subcontractors, say they fear for their clients’ future.

“This is going to be a big problem,” said Blane Smith, an insurance-coverage attorney.

Link to Article

The number of local construction-defect lawsuits has risen alongside the valley’s population. And one reason for this may be the heavy regulatory burden assumed by the area’s building and safety officials who oversaw all the area development.

County officials say that at the height of the building boom some inspectors were doing as many as 70 inspections a day. In response to reports that county building inspectors were conducting as many as 120 inspections a day during 2004 and 2006, Clark County Director of Development Services Ron Lynn said those numbers never got higher than between 60 and 70.

This article seems to echo the sentiments of many outsiders to the construction defect industry – that it is the responsibility of the local building departments (i.e.: the government) to prevent construction defects by policing contractors. In order for such a situation to exist, the local official would have to be on site at all times, or at least on a daily basis, at every single project. Instead, officials perform periodic inspections at certain key points in the construction of a project. For this reason, it is almost unheard of to see successful legal action taken against building officials for construction defect claims. Although some forward-thinking developers employ third party consultants to maintain an active presence during construction, this is not commonplace, especially in the production housing segment. Those developers that have relied upon such quality control consultants, have very little exposure in terms of construction defect claims, as problems are corrected as they arise. Until this practice becomes more widespread, homeowners will continue to rely upon construction defect consultants, such as SHCC, Inc., to aid in resolving these issues.

Link to Article

The billable hour is the dandelion of law practice: pervasive and not so popular.

So, when seeking to avoid the neg ative effects of a system that provides the profits for many a firm, there can be as many approaches as there are landscapers in the phone book.

Three law firms were among those changing the billable equation last year in hopes of reducing associate and client dissatisfaction. Each took a different approach, and though it’s still early, each firm’s leaders like the current results.

In summary, the concepts largely relate to reducing requirements for first-year attorneys, not billing clients for work by first-year attorneys, and flat-fee billing. This last concept is not discussed at much length in the article, but is worth exploring further. 

The Shepard Law Group, an employment law firm out of Boston, ditched billable hours completely in favor of flat fees. They call this “Up-Front Pricing” on their website, explaining that for the client, “You will always know how much our work is going to cost before we do it.” As they also state, “you don’t pay for our time — you pay for the work we do and the value you receive.” What a concept. 

Link to Article, Link to Shepard Law Group

Link to Video

The word stucco is Latin with Germanic roots, whatever that means. The Italian use of the word actually translates best as “filler”, but the conjugated verb stuccare refers generically to plaster. Thus the typical definition of stucco in modern English is refined lime cement plaster.

Today in construction there are many products that contain the word stucco and below are a few of them:

• Stucco – Most of the time that the word stucco is used in modern construction it refers to a 3-coat exterior cladding that is found in residential and commercial applications throughout the U.S. and in many countries around the world. The most common installation over wood framing consists of one or two layers of building paper (a vapor permeable weather barrier), metal lathing, a scratch coat of portland cement plaster, a brown coat of portland cement plaster, and a final finishing coat of portland cement plaster usually containing pigment to provide the final color and texture of the surface. The scratch coat is applied with sufficient force at an approximate thickness of 3/8-inch to become embedded into the metal lath which creates a metal reinforced cementitious base coat which is then “scratched” using a special tool. The “scratched” surface of the base coat provides a mechanical “key” to aid in the bonding of the “brown” coat which is also applied at a thickness of 3/8-inch. The final color coat is applied at 1/8-inch and depending on technique employed, can allow for a variety of textures. The final thickness of the 3-coat stucco system is ideally 7/8-inch. Portland Cement Association
• One-Coat Stucco – According to the National One Coat Stucco Association (NOCSA), “the term One Coat Stucco refers to a blend of Portland cement, sand, fibers, special proprietary chemicals and water. One Coat Stucco combines the scratch and brown coat into a single application of 3/8″ to 1/2″ thick.” On top of the base coat, a finish coat is applied – so really, “one coat stucco” is actually two coat stucco. The Evaluation Service, ICC-ES, is a non-profit corporation that evaluates various building products and methods of application. According to the various building code bodies in the U.S., now consolidated into the International Code Council, the evaluation reports issued by ICC-ES determine the compliance of given products and systems with accepted codes. As such, there is an evaluation report (ER-3899) that addresses one coat stucco products by several manufacturers available for download. The products listed in that specific report are Western 1-Kote Exterior Stucco System, Master Wall One Coat Stucco System, Dryvit Stucco Plus System and Sto One-coat Stucco System. There are many manufacturers of one coat stucco products today and accordingly, several more evaluation reports. NOCSA Technical Information
• EIFS – Exterior Insulating Finish System. Also called EFIS or Exterior Finish Insulation System. EIFS can also be called Synthetic Stucco. EIFS assemblies consist of an EPS foam substrate, a reinforced layer of adhesive and fiberglass reinforcing mesh, with a final topcoat of a polymer-based or polymer-modified finish material. These products also require an evaluation report for use. There are numerous reports under the 07240 division at the ICC-ES website for various EIFS products. Unfortunately, many in the industry have found it difficult to differentiate between various products and often one hears the terms “one coat stucco” and “EIFS” used interchangeably because often a manufacturer makes both types of products. To add to the confusion, there are hybrid systems that used portland cement or modified portland cement over EPS foam substrates. In fact, EPS foam is often used as a form for 3-coat systems at windows, and other openings. And Ultrakote manufactures a one coat stucco system that according to ER-4658 can be used in an open framing system over an EPS foam substrate. So even though EPS foam is used as a base for the finishing material, only EIFS is really EIFS. Article from forensic expert Brian Erickson, Wikipedia entry on EIFS
• Stucco Panels – These are prefabricated panels installed similar to hardboard siding that are composed of fiber reinforced portland cement. So this product is stucco, but it is siding, so it isn’t exactly stucco, depending on how one defines the term. Fiber Cement Siding at Wikipedia.
• Liquid Stucco – This isn’t stucco at all. “Liquid Stucco is a highly unique, permanent, ceramic-based exterior coating system designed to beautify, protect and insulate your home.” [Liquid Stucco, Inc.] The product is installed over a number of substrates including wood, siding, metal and, well – stucco. Liquid is definitely not stucco.
• Stucco Veneziano – This is the fancy name for Venetian Plaster which is a decorative paste plaster for interior applications that delivers a highly decorative, glossy finish that resembles marble. Marmorino Venetian Plasters USA

There can be a lot of variation in terms of material composition, application and installation of many products that people refer to as stucco. Many people also refer generically to sugary carbonated beverages as “coke”. But that doesn’t necessarily mean that it is the proprietary trademarked product of The Coca-Cola Company.

For millions of people, Google is an indispensable search tool that they use every day, in all facets of their lives. From work or school, research, to looking up movies and celebrities to news and gossip, Google is the go-to search engine.

But instead of just typing in a phrase and wading through page after page of results, there are a number of ways to make your searches more efficient.

Some of these are obvious ones, that you probably know about. But others are lesser-known, and others are known but not often used. Use this guide to learn more about, or be reminded of, some of the best ways to get exactly what you’re looking for, and quickly

In the litigation and consulting segments of the construction industry, access to information is essential. This article aims to help improve efficient access to one of the largest repositories of information through a series of smart and not always obvious tips.

Link to Article

Executive Hubris: How to Check Your Ego and Avoid Ruining Your Company and Your Career By Mathew Hayward

Hayward lays it out plainly: “If you are going to have a successful career and life, you are going to have to learn to check your ego.” Using examples such as Buffett and Welch to show that CEOs don’t have to have huge egos to succeed (and Dean Kamen of Segway as an example of hubris at work), Hayward offers ways to keep an eye on your ego while pushing the limits of success.

Link to Article download page

A leaky window isn’t going to mean the difference between life and death for entire families. Fire-resistive construction does. And the point that Brenner makes is salient: it is a mistake to use fire code defects as a “throwaway” during defect settlement negotiations, because lives hang in the balance.

Link to Article

It is interesting to me that the answer to the EIFS problem comes from the “Old World.” From my perspective, however it is perfectly logical. So much money and effort has been put into “adapting it” that it should have been the first clue that something was wrong with the system.

I remember the first time I saw it used. It was on a medical building in Hemet in the mid eighties. They first covered the entire exterior with OSB shear paneling, which was odd at the time as it was before all the code upgrades after the Northridge Earthquake. They installed their windows with the normal sisalkraft flashing that was the norm at the time. Then the entire exterior was covered with one-inch Styrofoam panels with the stucco netting directly on the foam, with the one coat of stucco applied directly to that. My first question was “Where’s the waterproofing?” My father-in-law, who knew the doctor that was having the structure built (and himself a general contractor for more that thirty years) said “It doesn’t need waterproofing, Styrofoam cups don’t leak!” I remember thinking about that and wondering how panels of foam, with flat edges butted against each other were the same as a Styrofoam cup. My next thought was “What is this stuff and where did it come from.”

That thought resurfaced a few years back when I was testing windows on a 300+ home defect law suit in Visalia, California. The walls were assembled similarly and every wall that we opened up (by taking drywall off the inside) had severe water stains. Then it all came back to me; The Styrofoam cup theory is only that, a theory. That other nagging thought was always in the back of my mind too, “What is this stuff and where did it come from.”

I was sent to the local building supply yard during that time to gather information on the “Theory and Practice of one coat stucco” or EIFS as some (incorrectly) identified it. I asked the man behind the counter what “System” the local plasterers were using to install the foam. He gave me a puzzled look, said that each plaster seemed to have his own way of doing it. Then he said the most profound statement of all that truly demonstrates the understanding of the building industry in that area, at that time; “Who cares what system they are using anyway? The stucco on the surface keeps the water out!” Yeah, I thought to my self; you keep thinking that!

Recently, I was sent a series of articles on the subject (that are included with this blog) that finally answer the burning question; “What is this stuff and where did it come from?” It originated in Europe as a means of insulating the exterior walls of concrete buildings. They don’t believe in “stick built” homes over there, which is probably why when I toured Germany and Austria, their average building seemed to be five hundred years old! It was never intended to keep the water out, only reduce the heat loss. Besides, water intrusion is not as big of an issue with solid concrete walls as it is in wood-framed construction.

So much time, money and effort been wasted on this issue when the first question that should have been answered is the one that is just now becoming apparent:

Is EIFS a practical finish material for wood-framed buildings?

Link to Article

Link to Article

Link to Calif. Energy Commission FAQs

Presentation Zen is a site that anyone involved in public presentation of information should visit on a regular basis. (For more insight into graphical presentation of information and reports, see Edward Tufte.) Reynolds’ website couldn’t have a more appropriate name as he truly espouses a “Zen”-like approach to presenting. In the defect industry, many cases are mediated and ultimately settled based upon the information and evidence that is presented by the experts. In the situation of a mediation, the more effectively an expert can present his evidence to the experts representing opposing parties, the easier it is to discuss the valid points of the case. The easier it is to discuss the actual matters at hand, the more likely that settlement will occur. But no matter how effective or snazzy an expert’s presentation is, if there is no mutual respect, the mediation process will go nowhere. Publicly questioning the credibility of another expert or attacking their opinions is no way to gain support.

“If one bad mouths a competitor in Japan they shame not only themselves but the group to which they belong. One who speaks poorly of others is not to be trusted…. When one remembers that there is no end to mastery — that one can and must be better the next day and the day after that (and the day after that) — then it is foolish indeed to ever look down one’s nose to anyone, especially our rivals. Ultimately, the real rival is within us anyway.”

Link to Article

Don’t feel bad if you aren’t prepared, because you aren’t alone. According to a recent survey in Computerworld Networking, “About 32% of 170 IT managers and staffers surveyed said they aren’t prepared to meet the requirements of the federal edict, 11% said they are somewhat prepared, while 42% said they don’t know the status of their companies’ preparation.”

Link to Article

[update 10 Jan 2007] Could you produce old e-mails and IMs in the event of a lawsuit? – detailed article from Computerworld regarding the issue.

A suggested listing of traits most valued by clients set forth the following items:

1. Show up on time
2. Do what you say
3. Finish what you start
4. Say please and thank you

Link to Article

Where this might really make an impact is on roofing consultants that are involved as experts on construction defect cases. There are many consulting firms with no employees – SHCC is one. But if that firm relies upon a C-39 Roofing contracting license, they must obtain worker’s comp coverage or show proof of self-insurance, or face losing their license.

Link to Article

A lot of careful thought has to be given to what claims are worth fighting about, because the association will likely have scarce resources available to it. Much of the value that counsel brings to this process is counsel’s experience and judgment and counsel’s relationships with experts who are particularly skilled in disciplines that are responsive to the needs of the association.

Some key questions that need to be addressed in any CD case are:

• “How good are plaintiff’s experts?”
• “How strong are plaintiff’s proofs on liability and damages–especially consequential damages as is discussed in detail below?”
• “Can the proofs be understood by the jury?”

How good are your experts? How strong is their evidence? How will they stand up in front of a jury if the case goes to trial?

Link to Article

“Most of the time, the unit owners who now control the Board of Directors of the association have no experience with construction and are just getting familiar with the construction issues at the same time that the developer is heading for the door. Normally, by the time the association finds out about design and construction deficiencies and defects, the developer is long gone and there are no more units left to be sold. The developer is typically a shell company set up as a corporation or limited liability company that has no assets and no real interest in doing repairs.”

Link to Article

Cyntia Scharf brings up a New Jersey case that shows just how crucial this issue can be:

If you are planning to sue to recover damages relating to construction defects, don’t destroy the evidence of the defects before the defendants have had a reasonable opportunity to inspect and document them. Such premature destruction of evidence could destroy the strength of your case.

The plaintiffs in the case destroyed evidence in the form of a failing greenhouse that was causing damage to their home. The defense argued that they did not have the opportunity to inspect the evidence and would have to rely upon the plaintiff’s expert. They convinced the judge that the plaintiff expert’s photos and reports should be excluded. Without evidence, and without the plaintiff expert’s documentation to rely upon, the case was pretty much over.

Link to Article

Link to another article on the same topic

“Fed up with rising labor costs, a new generation of entrepreneurs is launching millions of tiny companies differing from business in the past: They don’t want employees.

“The trend, building since the late 1990s, hit a milestone this year when the number of these microbusinesses reached 20 million — one for every six private-sector workers, a new analysis of government data shows.

“In place of paid employees, owners harness new technologies to outsource work, often linking up with other like-minded entrepreneurs to get jobs done in a virtual assembly line spanning the globe.”

Any guess as why an article like this might show up on this website?

SHCC, Inc. is a one-man show. Everything not done in-house it outsourced. Lean and mean. Well, maybe more like “lean and courteous/professional/thorough” – but whatever. It seems other people are finding the benefits of doing business this way also.

Link to Article

Michael Payne of Payne Hackenbracht & Sullivan provides some intelligent insight into the decision:

“The Court referred to one of the landmark cases in federal government contracting, Spearin v. U.S., where Justice Brandeis wrote the Supreme Court opinion that established the ‘Spearin Doctrine’ (a contractor will not be liable to an owner for loss or damage which results solely from insufficiencies or defects in plans and specifications).”

Reader’s Digest version: The contractor followed the government’s specification to a “T”, but the specs were wrong. The government sued the contractor for building it wrong. The court decided that the contractor was right and shouldn’t have to pay for the designer’s flaws.

Link to Article

Link to Article

“The first major conclusion is that nobody is great without work. It’s nice to believe that if you find the field where you’re naturally gifted, you’ll be great from day one, but it doesn’t happen. There’s no evidence of high-level performance without experience or practice.

“Reinforcing that no-free-lunch finding is vast evidence that even the most accomplished people need around ten years of hard work before becoming world-class, a pattern so well established researchers call it the ten-year rule.”

“The best people in any field are those who devote the most hours to what the researchers call ‘deliberate practice.’ It’s activity that’s explicitly intended to improve performance, that reaches for objectives just beyond one’s level of competence, provides feedback on results and involves high levels of repetition.”

An exhaustive study by researchers at Florida State University looked at successful performers in a variety of disciplines. That study has since been expanded into additional fields including business. With the notion that “[a]nything that anyone does at work, from the most basic task to the most exalted, is an improvable skill,” these studies are looking at the relationship between successful business leaders/innovators and the exalted artists, performers and athletes sitting on the other side of the coffeehouse.

Link to Article

“In particular, good contract drafting can help to minimize the impact of disputes between associations and their contractors.”

Suzanne Leff, a partner with Winzenburg, Leff, Purvis & Payne (Colorado), writes about the importance of good contracts between community associations and the contractors they hire. In summary, the better the contract is written and the more understanding up front of what is expected between parties, the less likely that litigation will be needed. Key points:

• “A bid or proposal form, while legally binding, is not a good contract.”
• “Low bid amounts may contain hidden costs.”
• “Negotiate amendments to contracts prepared by the other party.”
• “If a breach occurs, document the damages.”
• “An agreement to part ways may save time and money.”

Link to Article

“Expecting gratitude in exchange for having done something that was hard. Yes, you built a company, you might even have bootstrapped it. Yes, you’ve got the machinery and the packaging and the retail space. Yes, you’ve navigated hiring people and yes, you finally shipped. I couldn’t care less. I’m not going to buy your brownie/consulting/services just because you worked hard on it.”

Link to Article

Two articles explore this myth of the paperless office from the perspective of the attorneys. The comments following both posts are quite informative as well:

• T. Evan Schaeffer (Schaeffer & Lamere – MO, IL) says for him the paperless office remains a myth. [Link to Article]
• Ernest Svenson (host of one of our favorite law-related blogs – Ernie the Attorney) has given the issue some serious consideration following Hurricane Katrina, which had a significant impact on both his professional and personal life. [Link to Article, Link to PDF with much more detail]

YUCAIPA – After years of living in brand-new houses plagued with leaking windows and cracked stucco, 14 homeowners in Whisper Ranch have been awarded $1.3 million for construction defects.

Calimesa-based developer E. Wayne Simmons and builder Whisper Ranch Ltd. were ordered in July by a San Bernardino Superior Court judge to pay the 14 plaintiffs for construction defects ranging from slab leaks to slope failures.

The 200-home Whisper Ranch development off Mesa Grande Drive was built in the late 1990s. House prices ranged from $190,000 to $650,000.

Nikki Snelson, who bought her house in 1997, said she is satisfied with the award and is relieved to have repairs started on her home.

“There’s been a sense of instability through it all,’ the 39-year-old said. “I couldn’t clean and be done, I couldn’t sit and relax without seeing a mess. For women and kids trying to maintain a household, it was just havoc.’

After dealing with plumbing leaks and discovering her wedding dress had been ruined by resulting mold, Snelson contacted the law firm of Anderson & Kriger in Riverside.

The law firm sent out questionnaires to the project residents asking them to check off any construction problems with the houses. A lawsuit was filed in July 2004.

“We are very pleased that our clients are being appropriately compensated because it will cost them a lot of money to fix the things the developer should have done right in the first place,’ attorney Codette Wallace said.
This is one of the largest per-homeowner lawsuits in recent California history, said attorney Laurie Twitchell.
She said the average homeowner settlement is $15,000 to $25,000.

Wayne Simmons, owner of E. Wayne Simmons Inc., said the lawsuit was unnecessary because his company offered to make all necessary repairs and most of the problems were minor and could easily be repaired by the builder.

He said homeowners refused repairs and instead filed a lawsuit.

However, many residents said they sued because the builder was unwilling to make repairs in a timely manner.

Homeowners have to arrange and pay for the repairs themselves because the builder ceded responsibility with the judge’s ruling.

“Had they (the builder) taken care of the things wrong on the property, it would never have come to this,’ said Betty Chirrick, 69, who bought her home in 1999.

She said workers often failed to keep appointments to fix problems such as insufficient gutters and lack of a gas meter.

“My husband and I planned to make this our home for life, and I’m sorry it had to come to this. But they shouldn’t have dismissed us with such disregard.’