And They Built A Crooked House, by Ruth S. Martin


New Repair Estimate: June - September, 1988

Tom called in another builder to survey the house: Barry Marshall, an expert in rebuilding fire-damaged homes. Mr. Marshall came for an initial inspection in the afternoon of June 29. On the morning of June 29 Tom called me at work to report his conversation with Pierce, and also to discuss our outstanding legal bill. His last bill, for $11,000, covered the period only from October 1987 through January 1988. Since then we had incurred "billable hours in excess of $35,000." Although Tom or others in his firm had clearly spent this much time on our case, Tom realized the amount was excessive; with the upcoming trial our legal bill could well exceed the cost of repairing the house!

Tom said he "convinced" his billing department to lower the bill and switch to a contingency arrangement. The outstanding balance was thus `only' $14,700, which would include all legal fees through the trial, but not any work on appeals. In exchange for this fee reduction Tom would receive 40% of any money we won for punitive damages (e.g., mental anguish). Money specifically awarded for attorney or expert fees would be ours to keep in full. With this arrangement our total legal bill (through trial) would come to about $35,000. Added to this amount was another $20,000 for experts and court reporters' fees.

Fifty-five thousand dollars to get to trial boggles the mind. Surely the three defendants had spent close to this amount as well. Consider that the house could have been built properly if Murdock had paid a few thousand more for better rough-in carpenters, or if Nelson had paid one or two thousand for the services of a structural engineer. Consider that our expenses could have been reduced some 90% if the insurance company had just admitted the builder's mistakes and fixed the house in May 1987. Despite the enormity of legal fees we considered Tom's arrangement fair. It effectively put a reassuring ceiling on our expenses; an open-ended checkbook to your lawyer is not a pleasant thought. Also, we did not feel we were being made to pay for time wasted in drawing up the Settlement Agreement. The contingency arrangement also meant Tom would gain extra if we won damages, although Tom was always skeptical on that point.

* * *

I met Mr. Marshall at the house. He stayed two hours and was appalled. He had never, ever seen anything like our house in new construction. A burned out, fire-ravaged dwelling, yes. But new construction, untouched by flame? Never. Mr. Marshall's visit was psychologically refreshing. Here was an expert who didn't mince words about the abysmal quality of Murdock's work. Marshall's initial, ballpark estimate was around $100,000. "You have to think hard about this kind of work," he said. "The damage is so extensive, the repairs have to be done very carefully, room by room." Before finalizing his estimate he would return several more times, with subcontractors expert in plumbing and electrical systems. On this first visit Marshall impressed me as meticulous, competent, and articulate. Just what we needed in court.

* * *

Marshall finished his exhaustive survey by mid-August but we heard nothing from our lawyer. We began conjuring visions of more trial delays, more sleaze, more disappointments. I called Tom on September 1. He had just received Marshall's written estimate, and was preparing to send it to the defendants. The estimate to totally fix our house came to $92,000, including $21,000 to dig up and waterproof the basement. We received the written report two days later. It was a 22-page list of everything needed to restore our house, down to the final repainting and carpet cleaning. Accompanying the estimate was a letter from Melissa Oliver:

Tom and I reviewed [the estimate] with Barry today by telephone for nearly an hour. Much of our discussion pertained to the basement wall cracks and waterproofing. Barry will be reviewing with his associates the issues raised during our conference and he will provide us with a further response regarding the basement and some other areas on Tuesday. We will be evaluating the proposal with Barry again at that time so that we may all feel comfortable in advancing those items pertaining to basement waterproofing and crack repairs.

I was pleased with the estimate but upset with Melissa's letter. Did Tom still not understand the basement problem? Larry called Tom on Tuesday (9/6/88) and confirmed that, yes, he wasn't con-vinced about the basement. "I wanted to know if [Marshall's] opinion was based on something Ruth Martin told him or his own opinion," he said. He was again playing devil's advocate, a role we found increasingly frustrating. I was both hurt and angered. Why, I thought, do we have to continually fight our lawyer over the obvious? I called Tom on Wednesday (9/7) to discuss his position, and cited chapter and verse that documented the basement's defects. Tom did not remember all the evidence relating to the basement surveys. (I also asked Tom about the letter he had promised to write canceling the May 1988 settlement agreement. We were fearful of another phony settlement offer on October 11. Tom had been promising to write such a letter since late June, but had not done so out of ambivalence. He finally acquiesced. Two days later we received a copy; he sent the letter only to Harold Pierce). Over the next several days Larry and I pulled out every reference to the basement, comments made by both the experts and the defendants. On September 12, 1988 we sent Tom the complete list along with a cover letter.

Dear Tom, We are frankly puzzled by your minimizing the case for repairing our basement. Almost everyone on both sides has commented on problems with the basement. Charles Banks and Mr. Noble are the only experts who have not openly acknowledged significant basement defects. Banks doesn't build houses or fix basements or testify about their waterproofing needs (nor does he have to sell a house whose basement is full of large cracks). To give up on the basement because Banks thinks the problem is `settlement cracks' not only ignores all the other experts, but seems to be a self-defeating position. We believe the weight of all expert opinion would justify bringing suit on the basement alone. We realize that there is no consensus about exactly what is wrong or what must be done to fix the basement. Nonetheless, the weight of opinion argues strongly that, as a minimum, the basement must be fixed in such a way as to guarantee us a structurally sound and waterproofed basement. Obviously the guarantee must come from someone reputable, which leaves out the builder. Enclosed is a list of all this expert opinion, including your own before you called Banks into the case. Not included (because it's not in writing) are numerous comments from real estate agents and other builders, to the effect that the house could never be sold unless the basement cracks are fixed and properly sealed (not just mortared over). Our situation is difficult enough. To have to constantly lobby for what we feel should be obvious to you only adds to the pain. Please don't be offended. We just don't want to lose what we feel is a very strong case against some very sleazy people.

On the day we mailed this letter it rained quite bit. That evening I found a new puddle of water in the basement! We photographed the puddle from every conceivable angle and mailed the pictures to Tom on September 15. Would these pictures, plus our letter, now convince Tom about the basement? It is hard to imagine a better case for a lawyer, at least in the area of residential construction. Two clients who can afford expensive experts and legal fees, who have written letters and kept records documenting everything, and who come across convincingly in depositions. A house that is full of obvious and provable con-struction defects, with near unanimity among all experts. Three defendants, including a millionaire developer and a major insurance company representing the builder. No real defense position (no experts, no counterclaims, no settlement offers). And a judge reputed to be one of the best. What more could a plaintiff's lawyer wish for?

We believe Tom felt uncomfortable representing individuals who had been hurt, as opposed to a faceless corporation. We hungered for the type of plaintiff's attorney who would grasp the innate injustice in our case, who would exude confidence with half the evidence Tom had accumulated. Instead, with overwhelming evidence on our side and no experts for the defense, Tom continued to act as if we had a losing case. Tom's attitude about the basement exemplified this fatalistic view. He would often say we had a strong case but he seldom acted like he believed it. Tom's actions revealed a defeatist attitude that was hurting us, psychologically if not legally. We were still smarting from his inadequate preparation for the May 16 trial and the dismal scenario painted for us at the time ("If you win you lose"). Would he be prepared for trial October 11?

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