Randy Krebes

With a diverse background in architecture, construction, regulatory consulting and projects management leadership, Randy Krebes brings a uniquely comprehensive perspective to his expert witness work. ONYMOUS Architecture is the firm he founded that provides both design and forensic services. Randy is frequently retained due to his reputation as an effective and cordial communicator who efficiently resolves complex project concerns. In this interview, he discusses the most common causes of litigation in the building industry and how his firm utilizes recognized standards and an impartial scientific approach to help resolve disputes.

Your career spans architecture, owner representative, regulatory and construction leadership roles. How has this range of experience influenced your approach to expert witness work?

I view the building design and construction industry as being broadly organized by the main roles of its participants:

Disputes often result from misunderstandings between people having these different responsibilities. Having worked in many of these positions, I see things not always obvious to those having a single viewpoint. I offer a unique and integrated general perspective supported by detailed investigation abilities to quickly discern primary dispute causes. This experience has influenced our firm's reliance on established scientific principles and documented conduct and duty of care standards. It has allowed us to maintain a balanced and fair approach without allegiance to any disputing party and support the cost-effective analysis and formulation of reliable opinions.
Your firm maintains an active architectural practice alongside expert witness services. How does this dual focus enhance your ability to analyze disputes?

Remaining active in building design projects provides the opportunity to directly observe "the games people play." We see how some industry participants take shortcuts and push regulation boundaries to their personal advantage often resulting in disputes. These experiences provide substantial insight when analyzing litigation causes.

Our building design and expert witness work informs the other and provides better value to both client types. Our legal counsel clients frequently identify our active design involvement and past design experience as an important factor when retaining our expert witness services. Expert witness work enhances our design business and has led to more building remediation projects intended to correct the flaws of previous projects. It has been extremely satisfying assisting our design clients solve their most challenging facility problems and the involvement in repair, repurposing and reuse work aligns well with our firm's sustainability goals.

Construction disputes often involve conflicting technical interpretations and contractual obligations. What are some of the most common missteps that lead to litigation, and how can they be avoided?

Several checks and balances exist throughout the industry that help prevent differing technical or contract interpretations from becoming the main case of litigation. More often disputes arise from poorly constituted building project teams selected solely on the basis of cost or when team member responsibilities are downplayed or marginalized.

The most successful building projects fairly compensate their team members and allow for high-functioning working relationships to develop and effectively manage discourse throughout. Teams having an appreciation for other member responsibilities, park their egos and maintain strong communications possess a natural propensity for avoiding litigation. The best regulatory and technical standards or forms of agreement cannot account for project team relationship intangibles.

Technical and contract gaps are much easier to mitigate than conduct disparities. The case files we have reviewed frequently demonstrate adversarial or sparse communications at the early project stages that when unmitigated lead to downstream legal disputes. Good project management has the potential to nurture a productive team setting to avoid litigation.

Could you share some examples of cases where your analysis was critical in influencing the litigation outcomes?

Yes. Our analysis has influenced outcomes on cases involving the duty of care of designers and builders and management, design and technical deficiencies leading to building damage and financial loss.

In one case, our analysis of a faulty fireplace system installation causing a fire defended an insulation installer wrongfully accused of doing work leading to the building loss. Our investigation was critical in preventing the defendant's bankruptcy.

Our forensic investigations relied upon a deep understanding of interconnected responsibilities between owners, general contractors, installers and suppliers. We determined that defective fireplace system installations caused the fire rather than the insulation installation work. The process included a detailed photo analysis of the construction work, fire burn patterns, historic product fabrication and installation standards and materials ignition and flame spread properties. The analysis concluded the fireplace installation defects were the only possible fire cause and it was scientifically impossible for the insulation to be the source of flame spread.

During another engagement, we found that building water damage resulted from roof configuration design defects that prevented drainage. It was also found that the design was not supervised by a licensed design entity and certificates of construction completion were issued knowing defects remained.

Your expertise has been sought by national regulators, professional bodies, and government agencies. In your view, what regulatory changes or industry-wide improvements would reduce the frequency of disputes?

Good business conduct has the best potential to reduce disputes frequency but very difficult to consistently regulate. To an extent, acceptable practices are regulated through legal precedence. The main problem is that legal rulings do always make their way back to inform regular operational procedures.

I believe there is a huge opportunity for industry-wide education programs to better communicate the industry participants to achieve better project expectations alignment. In recent years, several trade associations and insurers have started to offer courses based on the most frequent topics of dispute that increase industry awareness and help safeguard businesses against litigation.

For example, design regulators moved towards more open and transparent complaint review processes and publish records of hearing issues and rulings raising awareness about common litigation issues. Technical trade association increasingly solicit feedback from industry subject matter experts as they prepare code and standard updates. International testing agencies offer courses that improve awareness about common dispute issues.
Litigation frequency is also impacted by economic stability that can be balanced by good work opportunities for both external experts and local forces.

Expert witnesses must navigate complex legal and technical issues while maintaining impartiality. What do you see as the key attributes of an effective expert witness?

Most importantly, I believe that an effective expert witness must have an extensive background of broad-ranging experiences that allows for the quick review and filtering of large amounts of information so that only the core issues can be identified while avoiding distraction by redundant and irrelevant data.

An effective expert witness must further be free from any potential conflicts of interest and be brutally honest in the formulation of their opinions. They should be able to anticipate potential opposing positions that may attempt to discredit their findings. They should be capable to go beyond simply answering legal counsel inquiries and propose methods of discovery and presentation that help strengthen dispute resolution and adjudication strategies.

An effective expert witness must be prepared to fully explain the rationale for their opinions in the simplest terms possible, author reports using concise narratives and support their findings by applicable references. A good expert witness should not be deterred by conducting extensive research into topics most relevant to the case. All potential benefits and pitfalls of each opinion should be anticipated in preparation for testimony.

Your firm is expanding its reach across Canada and the USA. What are the biggest barriers to this growth and your plans to address them?

Our firm has actually observed a high degree of disputes consistency across jurisdictions as viewed from a conceptual perspective. Most differences are due terminology and regional application variations.

Our investigation methods focus on basic scientific and regulatory principles easily refined to address specific regional methods. Maintaining a multi-jurisdiction presence strengthens our ability to focus on primary dispute causes and lessons learned help settle disputes in other locations. We take special care when connecting with potential clients in new jurisdictions to frame our discussions on common experiences while paying close attention to reference region terms and standards.

For professionals looking to transition into expert witness work, what are the most important lessons you've learned about balancing technical expertise with legal scrutiny? What advice can you provide to other consultants that may be considering a transition into expert witness work?

My main advice is that expert witness work requires a background and capacity to simultaneously analyze past building project events from both big picture and extremely analytical perspectives. Not everyone has the experience or patience to be engaged in this manner.

The biggest pitfalls in this type of business are the formulation of opinions that are unpopular with industry colleagues and may limit future consulting opportunities. By maintaining a professional, confidential, straightforward, respectful, un-editorialized and non-judgemental demeanour, expert witnesses can preserve credibility in future commissions. Retainer opportunities should be carefully assessed and declined when experts are compelled to compromise their integrity or adopt opinions not wholeheartedly believed.

Our expert witness work has been especially satisfying when we help identify dispute causes our clients were unable to recognize on their own and when we are able to enhance their legal positions. It is satisfying to see disputing parties effectively settle their disputes based on analysis and opinions. Influencing just and fair settlements for parties experiencing an impasse through our unbiased understanding and analysis is one of the most rewarding and satisfying aspects of our consulting practice.