Expert Witnesses

Man with a question

Interested to hear some opinions on this one.

To make a long story short...

Filed suit against a GC who would not pay his bills. Instead of working things out with us, he decided it was best to spend twice as much on lawyers than he owed us.

Naturally, once the case got under way, all the work we did turned out to "negligent" and our design "faulty".

While this particular GC might be a certifiable bad guy, what rankles me more is that a prominent member of the RPA, someone who has recently bid against us on jobs in fact, has appeared on their witness list to testify against us, presumably to trash our design and installation (which I can assure you is perfectly sound).

Now I have seen my share of Hall of Shame installs by other contractors, but that does not mean I would be willing to testify aginst them in a court proceeding. Why?

To me, this is just simply a no go.

Would you take time out from your work to take the stand against a fellow tradesman?

I'm curious.

Am I naive? Misplaced sense of honor? Could he really want business from this guy THAT bad?



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Jamie_5

expert witnesses

Just because he is on the witness list does not mean he will testify or that, if he does testify, he will say anything nasty about your job. There are rules regarding presentation of experts requiring advance notification, so the other side may be following those rules without yet knowing what he would say. The GC's lawyer may also be trying to scare you into settling.

As for the expert, he may only at this point have agreed to to testify in exchange for payment for his time. If he's reputable, he will not agree to testify to anything other than what he believes, based on his knowledge and experience. It is up to the other side's lawyer, typically after getting a written report, to decide whether the expert's testimony will help them.

Erich_3

Honor

How is it honorable to cover-up for shoddy work? Make sure yoor lawyer takes a deposition from the expert witness so that you know beforehand what the witness will say.

Mitch_6

Proof

The question is does the system work. In heat there are sometimes so many ways to approach the issue that it almost falls to opinion.

The end proof is does the system work to the home owners comfort level.

You should get a manufacturers rep to give there opinion since they may be a more neutral party.

In court only the lawyers make money, its no win at this point all you can do is cut losses.

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Man with a question

Court

In court only the lawyers make money, its no win at this point all you can do is cut losses.

How true this is! I will go to great lengths to resolve disputes out of court from here on in.

As far as the "expert" goes, we were only 25% through the job when the progress payment failed to come through.

There was no performance to evaluate, only a design.



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Man with a question

Other Opinion

By the way,

I do indeed have the mfgr rep's opinion. It so happens that I have attended 3 trainings with this company.

They were very happy to provide me with an honest and favorable opinion of my design.



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Mitch_6

Contractor history

Over the 20 years in business I have dealt with a lot of contractors that are men of there word and it has always been enough. Even when things go a stray, they pay there bill and work things out.

I have had contractors I got a signed contract, deposit check and found the check came back as I was finishing the project. I have had these people in hand cuffs in front of a judge for no avail.

I have found a common thread, if they have a history of not paying people and going through subs you are likely to get screwed. If there subs have been working with them for a long time and only small turn over you should be OK.

As to not going to court, I will try to resolve and issue first. I will not walk away from money that is rightly mine. I will go to court and fight to the end for what I fully believe I deserve.

There have been one or two occasions the cards on a project did not fall right. A little of everyone's fault and on those very rear occasions have decided to take my lumps and walk away.

just my $.02

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bb_11

Not just the lawyers

make money in court. The expert witness can get paid quite well. In fact, more than his standard hourly rate.

You too can get your own "expert" to testify on your behalf. But of course you will have to pay for their time.

bb

Dave Yates (GrandPAH)_2

sound advice

We went through a nasty experience with a 2%er that had millions to toss around. They had three ex-spurts: plumber; mechanical engineer; and a surveyor. I had a few too - other mechanical contractors - my direct competitors - who didn't charge a dime to drop the dime on the ex-spurts.

Strike 1: The plumber not only lied under oath and changed his story more than a few times, it was revealed he'd prostituted himself for $400 an hour, which caused all the other ex-spurts (less that $200 an hour each) and lawyers to gasp for air(G). It was abundantly obvious to everyone in the room that he'd sold himself down the river for the cash and would have parroted anything they wanted him to say.

Strike two: The mechanical engineer had utilized flawed math in his calculations. When our lawyer pointed out the facts, it was obvious he had repeated the same error 1,250-times, which threw off reality by a wide margin. He had done a 5'-long cad drawing - I had done one on graph paper in pencil - to show the elevations. His drawing was tossed out and the court accepted mine as being the one factual.

Strike three: The surveyor had shot grade from the wrong elevation and had relied on the corrupt plumber to tell him the depth of the sewer line as it related to the wrong elevation within the building.

Three strikes & they were out, but the next part was priceless - the property owners were caught in a lie and revealed they'd plotted from day-1 on how they were going to get out of paying us.

He who laughs last: I was last to testify and there was one loose end to wrap up that dealt with the tenant's lease. The tenant was suing the landlords - the owners I was fighting. I had the tenants' lawyer ask me the question necessary to give me the opening I needed to cinch their case against the owners. "Don't get him started!" interrupted the owners' lawyer, but it was too late. I drove in that final nail.

Full judgment for us, but we didn't get paid! As crazy as it was and as lopsided as was the testimony, they appealed. A jury trial would have cost us many thousands of dollars and the 2%ers with the millions wouldn't have missed the money spent with lawyers.

Their bill for ex-spurts? $40K! Mine? $0.00(G) All over a bill for less than $4K.

Wasn't worth the time and money - I'd already made fools of them, their witnesses, the lawyers who represented them and received full judgment - twice - Magistrate and arbitration. It was time to move on, get back to work and focus on looking ahead.

You should join the RPA if you're not yet a member. If their expert witness is an upstanding RPA member and your design is acceptable, then I'd find out who they are and reel them in with a subpoena if the opponents don't call for testimony. All's fair in love and war.

Unknown

Expert Witness

I have been a registered expert witness for over 15 years on gas service and installation issues. There are some very stiff rules as to expert witness testimony.

1. They must present to the court prior to entering court the expert witness report on the assigned subject of the case.

2. This report is made available to all involved.

3. Your lawyer has the right to depose with a court stenographer present the expert witness.

4. The expert witness can't in any way profit from the outcome of the case. (They are paid a set fee)

5. The expert witness can't exhibit prejudice but only report facts as relevant to the case, personal opinions are not accepted.

6. Each side may call their own experts but they must all exchange information to be presented by expert witnesses.

This is just a few of the more pertinent requirements. The only one who can extend these requirements to ask their own questions of expert witnesses are the judges. Your lawyer and the other lawyer can question the expert and attempt to discredit their testimony.

bill_105

where is the building depatment?

These guys most of the time support the contractor. In 87 I was the GC on a Montessori School in Santa Monica. I happened to noticed your address, by the way. The building inspectors were all behind me with stuff, Bob Milner and Don Hershberger (I'm sure their gone). Among other projects the school at 6th. and Broadway was my problem. The place is gone.

Al Letellier_21

expert witness

Great info, Tim. I too do this kind of work and I have seen good and bad cases. The most important rule of all that I use is this: The expert witness has to be ethical and professional above all else. It is his job and responsibility to report his OPINION based on the facts as he sees them. There are usually many ways to accomplish the end result. If it doesn't work is usually the reason it goes to the lawyers, and it is the jury that decideds who's opinion is correct, not the expert witness.
I have refused a case because I was too close to the parties involved, and I believe a lawyer should scream conflict of interest if the witness is a competitor of the parties involved.
As you know sitting through the discovery and depostion process is not an easy one, but staying within the boundaries and stating your opinion, not making accusations is the key to protecting your reputation as an induxtry expert.

Dave Yates (GrandPAH)_15

same here

most recent one was rendering an opinion in a scald-death case with a water heater being blamed as the cause

Bill Allen_2

Expert Witness

As one who has worked as an expert witness, the first and foremost thing is that your attorney understand the accusations and common industry practices. Too often I have seen attorneys talking away on what they think is the issue and get blown out of the water because they really do not have a clue. Your expert must be a person who can read the other expert's report and find the holes that your attorney can use against the report. Case in point - I wrote up an issue of piping problems in a crawl space. The other expert said he did not see them - because he never went down in the crawl space only poked his head in an access hole. During my deposition the opposing attorney said their expert did not see anything. I agreed with her and pointed out WHY he did not see anything. This destroyed credibility and caused the case to be settled. Most attorneys fail to get a grasp on the facts.

Unknown

I've been following this post and was on the verge of commenting but I see Bill Allen has already covered what I was planning to say better than I could.

Mechanically most attorneys are ignorant. I've seen cases lost just because the attorney wasn't on track as to what the core of the argument was all about. You can't just leave it up to your attorney. You and your expert witness need to make sure that the attorney understands all the arguments, both yours and your opponents.
Good Luck!

Mitch_6

Jurisdiction

If it is anything like Mass, the building department only cares about, fuel, electrical, venting and the water connection. Anything else about heat they have nothing to do with.

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Al Letellier_21

expert witness

I have one of those as well, but no death....a 4 month old with 2nd degree burns over 35%....babysitter charged with assalt.....tough one for sure.

bill_105

bill Allen ?

Are you talkig about the Veco thing? If so, incredible