Sometimes doing something unusual in a courtroom can make all the difference. Ohio civil litigation attorneys at Cooper & Elliott were faced with such a decision. After a brief discussion about the risk, they made a bold decision to literally pour a bottle of water over the defense’s exhibit—and it proved to be the turning point in the case of a family whose dream home turned into a nightmare due to a construction defect.
The construction defect
It started when the Gearharts* noticed water coming into the basement of their new home. After each rain, water poured in through the cinder blocks—so much so that the Gearharts were able to capture the water coming in on video. The sump pump was running non-stop, and their basement was so damp that mold was growing on their belongings, some of which were family heirlooms. Mildew formed on the walls, and when the Gearhart’s children started showing flu-like symptoms, they feared that mold was inside the walls. The Gearharts attempted to combat the mold growth with a variety of solutions, but had little success.
When the construction company that built the home refused to take responsibility for the water seepage, the Gearharts came to us for help.
Perseverance and creativity
We needed to find out exactly what flaws or defects were allowing water to leak into the basement of the Gearhart’s home. The construction company was not willing to cooperate in that, so we had to do some digging on our own.
Rather than spending thousands of dollars excavating around the entire house to see what errors had been made, we hired experts and conducted research. By looking through records we were able to determine how much gravel the builder had used, and according to experts, it wasn’t enough. Gravel allows water to drain away from the foundation walls, and without enough of it, the soil around the basement was absorbing water like a sponge. The immense weight of the saturated soil put so much pressure on the walls that they had started to bow and crack. Water damage aside; the very stability of the house was in question. By excavating in a small area, we discovered that the construction company neglected to properly treat the exterior of the walls with waterproofing chemicals.
During trial, the first judge dismissed the case—much to the consternation of the jury that had heard the evidence against the construction company. That decision was reversed on appeal, which meant that we would have to start over with a new trial, significantly lengthening the process. At that point, most attorneys would have grown weary with the case and advised their clients to take the settlement the construction company had offered—but we kept fighting.
Using the defense’s tools against them
During the second trial, the construction company’s defense built a special exhibit to demonstrate to the jury the functionality of a basement wall. It was a mock-up wall made of cinder blocks, about five feet long and four feet high, with tar on the outside and gravel at the base.
As we prepared for cross-examination, we noticed a bottle of water on the table, and it sparked an idea: after a brief discussion, we decided to take the bottle of water and pour it over the exhibit. The defense had constructed an elaborate exhibit to demonstrate how a basement wall should deflect water, but they had neglected to include water in their demonstration.
We knew we were taking a risk, but we followed our instinct.
As the cross-examination began, we asked the witness if the model represented a properly constructed wall. The witness acknowledged that it did. We then poured the water over the exhibit, which drained away exactly as intended—reaffirming that the walls of the Gearhart’s home were not properly constructed.
The jury had viewed the videos of water pouring in through the walls of the Gearhart’s basement, and the demonstration with the water bottle solidified our case. The witness wasn’t prepared for the exhibit to backfire, and needless to say, there were some chuckles from the jury. That moment helped turn the trial in favor of the Gearharts.
The Gearharts feared they might walk away having to pay exorbitant amounts of money to correct a terrible defect in their dream home. With a little creativity and perseverance, we were able to make sure that didn’t happen. They received a settlement that allowed them to fix their dream home, from bad walls to mold remediation, and helped pay their expenses while they lived somewhere else during the process.
Two civil litigation attorneys are better than one
There’s a reason we assign two attorneys to each case. All minds work differently, and sometimes one of us will see something that the other doesn’t, like I did with the water bottle. When that happens, we can put that new idea into play immediately, and it can make a big difference for our clients.
*Names in this article have been changed to protect our client’s privacy.
The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.