Like it says in my profile, I enjoy law office technology. Well, not really. It is more of an obsession. I should spend more time practicing law and less fiddling with hardware and software. Today my inner geek has triumphed. I want to write about a free tool for case management. Yes, it’s from Microsoft. But that is its strength, not a shortcoming. And did I mention it’s free?
I’m talking about SharePoint. More particularly, Windows SharePoint Services 3.0. It’s been around since about 2000, when it was known as SharePoint Team Services. Today it comes in several flavors ranging in price from free to several thousands of dollars. Unless your firm is in the AmLaw 500 you only need to consider the free version.
SharePoint is not easy to describe. One of Microsoft’s gurus calls it a list of lists, but it’s much more than that. It’s a place to share calendars, contacts, tasks, email, and more, all while controlling access both inside and outside your firm or organization. Think public folders on steroids.
So what can SharePoint do for you? My firm has three offices in South Carolina. I have one case where lawyers from two of those offices are working together. With SharePoint I can create a website for collaboration, documents, case calendar, and notes. I can control who has access, for example, me, my secretary and paralegal, Bill from Rock Hill, and his staff. If we have co-counsel from a different firm, I can grant access to her with no programming knowledge at all. With SharePoint I don’t have to worry about a pleading received in another location but not sent to me. As soon as its image is posted on the SharePoint site I get an email notification. If Rock Hill gets a hearing notice, a staffer there puts in on the SharePoint calendar. Since my Outlook calendar connects to SharePoint, the hearing appears there instantly.
Today’s version is so tightly integrated with Microsoft Office that there is even a “Save to SharePoint” option in the file menus of every application. I mentioned Outlook integration briefly. You can actually view the SharePoint site in Outlook. If a new document appears on the site, you can open it with Outlook’s preview feature. You can collect case emails and store them on the SharePoint site for each case. You can drag and drop messages, contacts, tasks, notes and events from Outlook to the case site. When you draft, say, discovery responses, you can save the document to SharePoint; send a message to other team members; and create a “workflow” for commenting and editing the responses before they are served. And, once you configure the site, all that happens automagically.
Most basic setup tasks are done inside the SharePoint web interface. Creating the site, adding team members, setting up pages for correspondence, pleadings, discovery documents—it is so simple even a lawyer can do it. Microsoft recommends pushing site creation down to the lowest staff level. Like NCO’s run the Army, our secretaries run the office. They know where things go. They’re the ones who should create the “filing cabinet” that is part of the SharePoint site. And once you have a case site set up for auto accidents, med mal, trip and fall, you can save it as a template. The next time you open a case you don’t have to go through the same configuration routine.
You can customize SharePoint as much as you wish. Some things—look and feel, arrangement of page elements—can be done in SharePoint. I paid $150 two years ago for SharePoint Designer. Microsoft now gives it away. It is a “WYSIWYG” editor for adding custom workflows and other elements to a SharePoint site. If you are really ambitious you will need Visual Studio or a similar development tool—or hire a programmer.
Microsoft says Windows SharePoint Services should only be installed on one of its server products: Windows Server 2003 or 2008 or Small Business Server 2003 or 2008. It does not support installation on a client operating system. That doesn’t mean you can’t do it. Check out this blog for instructions how to install SharePoint on a Vista or Windows 7 box. Even if your network is peer-to-peer you can enjoy SharePoint’s benefits.
Take a minute and look at the SharePoint article in Wikipedia. See some of the features in action on Microsoft’s website. This product is worth a look for any shop needing a cheap upgrade from Exchange public folders. For that matter, anyone who uses only Outlook (or even note cards) for practice management should seriously consider moving to SharePoint.
Monday, November 30, 2009
Thursday, November 19, 2009
Why is it so hard to class building defect claims?
There’s a townhouse development in the city with forty units. The HOA contacts you and says "everyone" in the neighborhood has leaky windows. You meet with the board, walk through the site, and decide it's worth a few dollars to get an engineer involved. Meanwhile, you ask the board to conduct a census to determine just how widespread the problem really is.
Twenty-two owners respond. Sixteen confirm their windows have leaked. Based on a visual inspection the engineer concludes a single manufacturer produced all the windows. He removes the siding around windows in three units, and discovers that no rough opening flashing was installed at the sill of any of them. He pulls one of those windows from the wall and determines that it was fabricated with an extrusion that directs water from the window sill behind the plane of the siding but in front of the sheathing. If the window had been manufactured differently, the absence of rough opening flashing wouldn't matter. If the rough opening flashing had been installed, the window defect would cause no damage.
There are several possible remedies: replace all the windows; remove every window, install rough opening flashing, and reset the windows; remove some siding beneath the windows and replace the sill extrusions; or drive down to Lowe's and pick up some caulk to seal the windowsills. The cost to repair ranges from twenty or thirty bucks for self-help caulking to several thousand dollars for window replacement—more, if the interior finishes must be disturbed.
You file suit against the builder, the framing subcontractor who set the windows, and the window manufacturer. Your action seeks certification as a class consisting of the owners of all forty units. Sounds easy, right? Numerosity, commonality, typicality, adequacy of representation, and (here in South Carolina), more than $100 in damages for each class member. Think again. You will face challenges on each requirement, from both defense counsel and the bench. And don’t even get me started with the predominance and efficiency requirements under the federal rule and state rules patterned on it.
With apologies to Irving Younger, you will hear the following. The windows don’t leak. If they do leak, it’s only a few. If a lot leak, they aren’t in every unit. And every one that leaks, leaks for a different reason. At least half of the homes haven’t been maintained properly. Only thirty of the owners purchased from the builder. Only thirty-two owners actually live in their units. Some windows leak worse than others. Some don’t leak at all. And your class rep used to be my job foreman, who I fired for stealing from me.
From the manufacturer you will hear a similar melody. I didn’t make the windows. If I did, I only made some of them. The ones I made don’t leak. If they do leak it’s because the framer put them in wrong. And besides, all you really need to do is caulk them.
Meanwhile, you find out that the judge who will hear your motion on class cert is from a county clear across the state. He’s thinking, “If I certify this class, I might get stuck in a three-week trial 100 miles from home.”
Now, I think this case should be certified. The engineer must testify at trial. You will need a window expert as well. For them to investigate, report, depose, and testify at trial will cost easily $15,000. There are defense experts to compensate. There are exhibits to produce. And, of course, you would like to get paid for all this work. Add it up and there is no sane lawyer who would prosecute an individual case, and no homeowner who could afford it if she found a lawyer to represent her. On the other hand, a single trial will be dispositive of liability issues. That individual class members may have different types or amounts of damages doesn’t mean the class shouldn’t be certified. But I don’t wear a black robe.
The defendants will make loud and sometimes convincing arguments that your case fails to meet any of Rule 23’s requirements for certification. And there are three of them in your case. And at least one them will hire a law firm with a construction “team,” a product liability team, and a class action team. Add this to an already skeptical judge and you have your work cut out for you.
You can certify a building defect class. It’s hard. The deck may be stacked against you. These cases do present more complex issues than, say, systematic overcharges by a wireless provider (no diss meant to my friends who have successfully prosecuted those cases). You need to simplify the issues as much as possible, narrow the class definition, and possibly shrink the potential class. Depending on the outcome of my most recent motion, I may talk about successful strategies for class cert in the next couple of weeks.
Twenty-two owners respond. Sixteen confirm their windows have leaked. Based on a visual inspection the engineer concludes a single manufacturer produced all the windows. He removes the siding around windows in three units, and discovers that no rough opening flashing was installed at the sill of any of them. He pulls one of those windows from the wall and determines that it was fabricated with an extrusion that directs water from the window sill behind the plane of the siding but in front of the sheathing. If the window had been manufactured differently, the absence of rough opening flashing wouldn't matter. If the rough opening flashing had been installed, the window defect would cause no damage.
There are several possible remedies: replace all the windows; remove every window, install rough opening flashing, and reset the windows; remove some siding beneath the windows and replace the sill extrusions; or drive down to Lowe's and pick up some caulk to seal the windowsills. The cost to repair ranges from twenty or thirty bucks for self-help caulking to several thousand dollars for window replacement—more, if the interior finishes must be disturbed.
You file suit against the builder, the framing subcontractor who set the windows, and the window manufacturer. Your action seeks certification as a class consisting of the owners of all forty units. Sounds easy, right? Numerosity, commonality, typicality, adequacy of representation, and (here in South Carolina), more than $100 in damages for each class member. Think again. You will face challenges on each requirement, from both defense counsel and the bench. And don’t even get me started with the predominance and efficiency requirements under the federal rule and state rules patterned on it.
With apologies to Irving Younger, you will hear the following. The windows don’t leak. If they do leak, it’s only a few. If a lot leak, they aren’t in every unit. And every one that leaks, leaks for a different reason. At least half of the homes haven’t been maintained properly. Only thirty of the owners purchased from the builder. Only thirty-two owners actually live in their units. Some windows leak worse than others. Some don’t leak at all. And your class rep used to be my job foreman, who I fired for stealing from me.
From the manufacturer you will hear a similar melody. I didn’t make the windows. If I did, I only made some of them. The ones I made don’t leak. If they do leak it’s because the framer put them in wrong. And besides, all you really need to do is caulk them.
Meanwhile, you find out that the judge who will hear your motion on class cert is from a county clear across the state. He’s thinking, “If I certify this class, I might get stuck in a three-week trial 100 miles from home.”
Now, I think this case should be certified. The engineer must testify at trial. You will need a window expert as well. For them to investigate, report, depose, and testify at trial will cost easily $15,000. There are defense experts to compensate. There are exhibits to produce. And, of course, you would like to get paid for all this work. Add it up and there is no sane lawyer who would prosecute an individual case, and no homeowner who could afford it if she found a lawyer to represent her. On the other hand, a single trial will be dispositive of liability issues. That individual class members may have different types or amounts of damages doesn’t mean the class shouldn’t be certified. But I don’t wear a black robe.
The defendants will make loud and sometimes convincing arguments that your case fails to meet any of Rule 23’s requirements for certification. And there are three of them in your case. And at least one them will hire a law firm with a construction “team,” a product liability team, and a class action team. Add this to an already skeptical judge and you have your work cut out for you.
You can certify a building defect class. It’s hard. The deck may be stacked against you. These cases do present more complex issues than, say, systematic overcharges by a wireless provider (no diss meant to my friends who have successfully prosecuted those cases). You need to simplify the issues as much as possible, narrow the class definition, and possibly shrink the potential class. Depending on the outcome of my most recent motion, I may talk about successful strategies for class cert in the next couple of weeks.
Friday, November 13, 2009
The South Carolina Supreme Court is trying to put me out of business
For nearly two years those of us who represent building owners--and the contractors we sue--thought the issue of liability coverage for building defects was settled in South Carolina. September brought not only the end of summer, but the end of certainty as well. In Auto Owners Insurance Company v. Newman, Opinion No. 26450 (Sept. 8, 2009), the Supreme Court determined one of the largest elements of a plaintiff’s damages in defective construction cases is not covered. Justice Pleicones went even farther, dissenting on the ground that a builder’s error in construction does not constitute an occurrence under the terms of a commercial general liability insurance policy.
At issue is whether faulty construction that causes physical damage to a building will trigger insurance coverage. Trinity Construction built a house for Virginia Newman in 1999. A subcontractor placed traditional stucco siding on the exterior. Shortly after she moved in, Ms. Newman noticed water leaking through the walls. She hired an engineer who determined the stucco was improperly installed and water was attacking the sheathing and framing. An arbitrator awarded Ms. Newman nearly $56,000 for her claims against Trinity.
Auto Owners had issued a CGL policy to Trinity. Unsurprisingly, it filed a declaratory judgment action contesting coverage. Prior decisions by the Supreme Court had led to some inconsistency in the way insurers evaluated their policy language. Originally the court issued an opinion in Newman that appeared to settle the issue once and for all. It held defective construction was an occurrence; that any exclusions in the policy were trumped by an exception for work performed by a subcontractor; and that the cost to remove the stucco was covered because it was the only way to reach the parts of the house that required repair.
At this point my colleagues on the north side of the V and I heaved sighs of relief. For years we had settled cases, or tried them and collected verdicts and awards, based on our conviction a standard ISO CGL policy covered damage from defective construction. Despite some fits and starts, the high court had finally vindicated us. There was no longer any doubt we could reach the policies.
Alas. Our celebration was short-lived. Eighteen months later the court withdrew and re-issued its opinion. Based on the "sistership" exclusion (traditionally invoked for product recalls), Chief Justice Toal reversed her earlier holding that the cost to remove the stucco was covered. At least she still ruled that a building defect was an occurrence. In his dissent, Justice Pleicones relied on the "business risk" exclusion (I have searched in vain for that language in the policy) to write out of coverage any cost to repair defective construction.
So where are we now? Well, we are in full retreat from the strong protection our courts have traditionally afforded homeowners. If you have experience with stucco claims, particularly artificial stucco, you know that the cost to replace sheathing and siding is relatively minor. The real expense is removing the siding to get to the repairs, and replacing it once the repairs are done. After Newman, there's no coverage for that. Presumably its logic would apply to wallboard removed to access defective plumbing connections or electrical wiring; roofing removed to replace soaked insulation; and windows pulled to install flashing omitted during original construction. The biggest losers, though, may be homebuilders and commercial contractors who purchased CGL policies over the years, believing they were covered for all damages. Amazingly, there is no clamor from the industry's lobbyists to reverse Newman in the legislature. The big winners? Insurance companies, of course. If the largest element of damage is excluded from coverage, it means the billions in premiums they collected over the last few years will be nearly pure profit.
I am working on a more scholarly article about Newman, one with real citations and stuff. I'll link to it when it's done and my friends have edited the article to avoid my disbarment.
At issue is whether faulty construction that causes physical damage to a building will trigger insurance coverage. Trinity Construction built a house for Virginia Newman in 1999. A subcontractor placed traditional stucco siding on the exterior. Shortly after she moved in, Ms. Newman noticed water leaking through the walls. She hired an engineer who determined the stucco was improperly installed and water was attacking the sheathing and framing. An arbitrator awarded Ms. Newman nearly $56,000 for her claims against Trinity.
Auto Owners had issued a CGL policy to Trinity. Unsurprisingly, it filed a declaratory judgment action contesting coverage. Prior decisions by the Supreme Court had led to some inconsistency in the way insurers evaluated their policy language. Originally the court issued an opinion in Newman that appeared to settle the issue once and for all. It held defective construction was an occurrence; that any exclusions in the policy were trumped by an exception for work performed by a subcontractor; and that the cost to remove the stucco was covered because it was the only way to reach the parts of the house that required repair.
At this point my colleagues on the north side of the V and I heaved sighs of relief. For years we had settled cases, or tried them and collected verdicts and awards, based on our conviction a standard ISO CGL policy covered damage from defective construction. Despite some fits and starts, the high court had finally vindicated us. There was no longer any doubt we could reach the policies.
Alas. Our celebration was short-lived. Eighteen months later the court withdrew and re-issued its opinion. Based on the "sistership" exclusion (traditionally invoked for product recalls), Chief Justice Toal reversed her earlier holding that the cost to remove the stucco was covered. At least she still ruled that a building defect was an occurrence. In his dissent, Justice Pleicones relied on the "business risk" exclusion (I have searched in vain for that language in the policy) to write out of coverage any cost to repair defective construction.
So where are we now? Well, we are in full retreat from the strong protection our courts have traditionally afforded homeowners. If you have experience with stucco claims, particularly artificial stucco, you know that the cost to replace sheathing and siding is relatively minor. The real expense is removing the siding to get to the repairs, and replacing it once the repairs are done. After Newman, there's no coverage for that. Presumably its logic would apply to wallboard removed to access defective plumbing connections or electrical wiring; roofing removed to replace soaked insulation; and windows pulled to install flashing omitted during original construction. The biggest losers, though, may be homebuilders and commercial contractors who purchased CGL policies over the years, believing they were covered for all damages. Amazingly, there is no clamor from the industry's lobbyists to reverse Newman in the legislature. The big winners? Insurance companies, of course. If the largest element of damage is excluded from coverage, it means the billions in premiums they collected over the last few years will be nearly pure profit.
I am working on a more scholarly article about Newman, one with real citations and stuff. I'll link to it when it's done and my friends have edited the article to avoid my disbarment.
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