Condo Media - May 2014 - 29

to pay as part of a universal settlement
or damage award. Taking MDA off the
field left the engineering firm with far
more liability exposure than it expected
and without the legal team (MDA's)
that had been handling the defense.

Sudden Exposure

The engineering firm must have felt a
little like a quarterback dropping back
to pass who sees four huge linemen
heading toward him and discovers that
the front line he thought was defending him is sitting on the sidelines.
That could not have been a comfortable feeling and it became even
less so when the trial judge took two
definitive actions in the board's favor:
The first was the entry of an order
barring the "supplemental" expert testimony the engineering firm wanted to
submit (because it raised new issues);
the second was a statement, in open
court, that the defendant's expert disclosures were unacceptably vague and
did not comply with the minimum
requirements necessary to allow the
experts to testify. Those developments
left the engineering firm in an even
worse defensive position and much
more receptive to the settlement we
eventually negotiated.
While confidentiality provisions
prevent disclosure of the settlement
details, including who ultimately paid
how much, the association's board was
not disappointed in the $12.25 million
the association received.

the information needed to support
the claims was made available and
the protocols established to protect
confidential information were closely
followed.
The board's forensic experts provided rock-solid analysis and assisted
greatly in converting highly technical
engineering and architectural issues
into a comprehensive and comprehensible narrative.

Walking a Tightrope

The board had to walk a tightrope
- keeping owners informed without
divulging expert testimony, strategies, and other privileged information that, if disclosed to the opposition, would have seriously weakened
the association's case. It was a
difficult balancing act, and the board
handled it well. Board members also
deserve tremendous credit for their
ability to focus on and assess the
complicated legal and financial issues
involved and to make informed deci-

sions about how best to protect the
association's interests.
The board was demanding at all
times, with counsel and with its
experts, and those high expectations contributed in no small part
to the quality of the product at the
end of the day. The board valued
the opinions of each member of the
team, but it challenged everything in
insightful and productive ways.
While the legal strategy devised
worked out well for the board, executing the strategy was a team effort all
the way.
And that team effort - the involvement of a dedicated board, a responsive
and professional management company, and intelligent and skilled experts
- was every bit as important as the
legal strategy in securing the positive
outcome achieved. CM
David Rogers, Esq., is an associate in
the Litigation Group at Marcus, Errico,
Emmer & Brooks.

Working Together

The significant role the board and
the management company played
throughout the process cannot be
overstated. The board members were
sophisticated, conscientious, dedicated,
motivated, and deeply involved in the
case during the four years of active litigation. During the last two years, the
board was meeting or at least speaking
with counsel virtually every week to
discuss strategy and assess options.
The building manager worked
tirelessly on the board's behalf and
was always responsive, working with
counsel and experts to make sure
Condo Media * May 2014

Condo Media - May 2014

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