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Directories Int'l Realty US Realty
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Why Every Home Owner Needs To Think Like A Lawyer Stuart Lieberman, Esq., Home related environmental issues can be costly. Leaking oil tank repairs, lead abatements, and dirty well water issues can all add up. When these problems arise, you need an expert to come to your home and fix them for you. If they don't cost too much, you probably pay the bill and forget about it. Everything doesn't have to turn into a lawsuit. But if the problem is costly, you may have to file a lawsuit against the polluter to have the polluter pay. By polluter, I mean the company who polluted your water, or owned the tank when it leaked, or did not advise you of the lead or asbestos insulation in your home. When a lawsuit may be necessary, your contractor should not think solely about meeting technical requirements. Rather, the contractor must take additional measures required to preserve evidence and prove a cost recovery case in court. You see, the contractor must think about more than dirty soil and water and lead, etc., -- he or she must also think about preservation and development of evidence. Yes, he needs to think like a lawyer. And this preservation needs to happen while the corrective work is being performed. Often it cannot be re-created after the fact. A failure to preserve evidence can be the difference between wining and losing in court. If oil contaminated soil is removed, for example, the other side in litigation may allege that too much soil was removed and seek to avoid paying the full cleanup costs. Sure, the cleanup technical requirements may not have required formal documentation that every truckload of removed soil was dirty, but a jury may require such proof when trying to recover the costs from the responsible party. If a tank is removed and it has holes in it, will you keep the tank, or pieces of it? Will you notify probable cost recovery targets in advance, before the tank is taken to a scrap yard? This will offer the other side a chance to evaluate the tank independently. And if it elects not to take advantage of this invitation, at trial you can prove that the opportunity was offered and denied. If your environmental problem seems like a large one that really should be paid for by someone else, I very strongly suggest that your retain legal counsel as early in the process as possible. That lawyer will work with your consultants while they are performing their work. They will ensure that evidence is preserved and that pro-active extra measures, which may cost only a little extra but may mean a lot at trial, are evaluated before doing so becomes difficult because the remediation has too far advanced. No, you should not hire a lawyer every time you have an environmental issue. But issues that seem likely to require a lawyer after the cleanup is performed need legal attention before the work is completed. It's strictly a timing issue. Often waiting until after the work is completed means waiting too late in the process. If the cleanup is going to get ugly, hire a lawyer as early in the process as possible.
The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.
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