Legal Expert: There Is No 'One-Size-Fits-All' Strategy
For more than 15 years, anorney Kathleen F. Carpenter has advised builders on risk management and problem resolution regarding many construction and land-development matters, including Internet picketing and lawsuit prevention. She also has defend~d numerous homebuilders in construction-dispute cases. A partner with the San Francisco law firm of Cooper, White & Cooper LLP, Carpenter says builders need to consider these eight factors when developing the best strategy to implement.
Take preventive action: I think that most builders - especially with the advent of S8 800 - are trying to improve customer service, improve problem prevention, and deal directly with customers so they do not even reach the stage of having a claim or lawsuit. Customers with whom the builder has built good relationships are not easily taken in by promises made by lawyers knocking at the door.
Know your enemy: If the builder has a customer service problem in a subdivision, and then - all of a sudden - when the solicitation letter is sent, the builder appears to jump to the occasion and says, "We stand behind our product, and we'll do this. and we'll do that," that's often not taken well by frustrated homeowners. They may believe that the response by the builder was a direct result of the action of the lawyer who's trying to solicit them. That is just one of the many factors that should be considered in deciding what a builder should do, how quickly a builder should act, and when a builder should counterattack.
Plan for the attack: Develop a strategy early on that involves a team, which could include an expert, a special customer service team, counsel and a public relations expert. Have everyone ready to roll into action when a subdivision is bombed.
Different plans for different situations: There's not a one-program-fits-all solution. Every situation has a different dynamic - the size of the subdivision, the extent of the problems, if any, in a particular subdivision, and the dynamics of the people involved. For example, if there is a ringleader who has developed a religious zeal to make the builder hislher personal mission, a builder needs to factor that into any strategic plan.
Let the homeowner know you're there to help: Anumber of builders take a more personal door-to-door approach to match whatever is being done (by the plaintiff's attorneys) and to show an additional level of concern and consideration, usually in tandem with a letter.The strategy is for the builder to let the homeowner know they're there, they stand behind their product, and that the truth is that hiring a lawyer is an unnecessary part to getting their problem resolved - and in some cases may cost the homeowner.
What tone to take: Aplan of attack when the subdivision is carpet bombed could range from an aggressive response to a much more subtle response, depending on the level of attack and the scope of the problems (if any) that may exist. Some builders take a very aggressive approach, which could backfire in some cases - the approach of scaring the homeowners the other way, out of litigation, by going to great lengths to describe all the potential negative effects of litigation. I think that is a good strategy in some circumstances, but a more subtle "fight fire with sugar" approach might work better in some cases.
Respond appropriately: Sometimes builders immediately send a mass mailing out to hundreds and hundreds of homeowners, when it's quite possible that not that many have been solicited. A builder really has to assess whether it's going to bring more attention to the problem and what statement it makes by coming out with a response that could lend more credence to the other side's claim - or send out to a broader group of owners than originally solicited.
Consider advising homeowners about lawyer solicitation long before it happens: Basically, builders should just assume that at some point. their homes are going to be carpet bombed by the so-called consumer attorneys. Since that is the case, you might as well stay ahead of the curve. Tell your homeowners (even as early as the point of sale, through customer service) that it's possible that they could be solicited to sue their builder, and remind them that before they contact an attorney, "contact us and we'll fix it." If they get that letter long before an attorney has solicited them to sue the builder, it's possible that they will remember the builder's earlier statement and call the builder, not the lawyer. It's common sense - lawyers sue, they do not make repairs.
This article originally appeared in the September/October 2004 issue of California Builder.
