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after 2 cases that were settled out of court, i am now, it appears, going to have to testify. i would like to hear comments/advice from those of you who have undertaken this expert witness thing. i realize first off that i am not an expert but more of an experienced witness. eventho i’m not the one on trial, it still feels a bit intimidating. any thoughts? thanks
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Andrew,
This one was made for you!
*calvin,While we're waiting for Andrew (who once complained about his name coming up so quickly in threads like this), I'll toss in a penny's worth.Be sure you know what questions you are going to be asked. Talk to the attorney representing the side you are testifying for. After finding out what he or she is going to ask, find out what the other side's attorney is likely to ask. I was once asked to testify that the pictures being entered as evidence accurately reflected the conditions in the house. But in court, I was asked to comment on the professionalism of the work! I wasn't at all ready for that and I'm sure that hurt the case (and didn't make me happy either).Rich Beckman
*I shouldn't admit it, but you guys are making me a lot more interested in being a litigator (that's the name for a lawyer who works with lawsuits -- only a fraction of all lawyers do this full-time!). Better yet, an arbitrator, one who isn't trying to split the difference but get at the correct result. Well, maybe someday ... a lot of retired judges go this route.I can tell you a little bit. The term "expert" witness is a little misleading: it doesn't mean you have like a Ph.D. or anything, just that you have some expertise that will be helpful to the decisionmaker (judge or jury) in deciding the case. That is, you can throw some light on stuff that a layperson might not comprehend, like how you've seen buildings fail in the past that left similar clues, etc.Before you take the stand, the "other side" will know your name, credentials, and the gist of what you're going to say. The lawyer who hired you will presumably go over privately what you'll be testifying about in response to his/her questions on "direct examination," and what sort of questions the opposition will raise on "cross-examination." The style of questions asked by each side is different. While your side is not allowed to "lead" you -- that is, ask Q's that suggest what they want you to say -- the other side can be much more aggressive, and it fact will try to pin you down to yes/no answers. They won't want to allow you to try to explain away the weaknesses they're trying to point out in your testimony.Tell the attorney who hired you about your nerves when you go over things and get some pointers on what behavior they expect of you. The attorney can't ethically coach you to parrot exactly what they want to hear -- it has to be your testimony, not the lawyer's -- but can give you an idea what will be happening. Try to sit in on a trial beforehand, or watch Court-TV, if you get a chance -- you'll see how remarkably boring they usually are! Not like TV ... in the stuffy federal courts where I worked, the lawyer wasn't even allowed to move from the podium (no leaning on the jury box or witness stand to hurl accusations in garlic-laden breath!). But don't get defensive or flustered, remember you're not on trial.I'd ask you what you're going to be talking about but assume you can't at this point (don't, to anyone). Afterwards, do share -- I've talked to a few expert witnesses and find it a very interesting topic. I'm sure others here have done this before. BTW, a good example of expert witnesses is the recent Microsoft trial. The judge started out knowing little about computers, and even reportedly wrote some of his decisions in longhand. By the end he was yabbering about CPU's and clients and such, and eventually made the decision which experts to believe.
*rich, thank you. and i can already imagine the question regarding the work. i am on the contractor side and am hesitant to comment on the quality of work done. however, you know the question will be asked and evidently you must answer truthfully. so what is a fellah to do? if you can't tip me maybe andrew will have the magic wand. one other question regarding the credentials i should present as to my expertise. what do they want? life story. training. inspection dept. experience with my work. those 2 that settled out were just too easy. the work which was crappy and substandard was easy to substantiate. this one is suit countersuit, involves some sizable $, and is way open to opinion. ugh. thanks again.
*Dear Calvin,Good for you. I witness for roofing and insulation cases and like it enough to prospect for the work.Intimidating? You bet. This isn't some bar room story telling session. All the formality, costuming, oaths, and architecture is purposefully designed to scare the truth out of you.A few practicalities: Wear your Sunday clothes. Stand up whenever you address the court (judge). Arrive early and expect to stay late. Bring a doodle pad or something to occupy the long hours of waiting. Avoid making any sound or motion that attracts attention while waiting in the court. Practice speaking so that you can deliver your pitch in a strong, slow, steady voice. Consult with the client's attorney so that you know the key points he wants to present.You must be credible and truthful. Don't take on a client that you can't support ethically. Don't take on a project that you can't discuss with authority. You need to be personally involved with the process of that construction project or have extraordinary experience and training that applies directly to it. Otherwise, excuse yourself.Expect to speak about both the positive and negative aspects of your client's postion. Your credibility will be trashed if you come off like a cheerleader. When you're with the right clients, you can witness truthfully and with balance so that the scales of justice will always tip in their favor.So help me God, Fred
*Hey, I guess we're overlapping a bit here. Rich and I agree here -- while the lawyer SHOULD prep you, they get pretty bloody busy before trial and might not cover some ground. Use your own head to guess what you'll be asked, and ask the lawyer about it. Read the papers -- claim, counterclaim, etc. -- filed by each side with your own eyes. They will spell out each independent theory of recovery (e.g., we should get money because they were negligent, and because they violated their warranty, and because their agents were negligent, etc.) and defenses to these claims. There will be a lot of legal verbiage, but you'll quickly see what the claims turn on because you know more about buildings than any of the lawyers.Oh yeah, make sure any exhibits are set up right -- like photographs, models, whatever -- that they're labeled right and you're familiar with them. I'm thinking again of the botched Microsoft trial.Your opinions are THE important thing you have to offer, and if they're persuasive and you sem like a reliable, dependable guy they could decide the case. The two basic ways to attack your testimony are (1) you don't know what you're talking about, whether for lack of experience or time spent on the case; and (2) you're lying or coloring your responses to please your client or make yourself look smart.
*I'm starting to think Fred is a closeted lawyer-wannabe. Think about it: he presents his points clearly and forcefully, backed by experience and evidence, while also appreciating the importanace of APPEARING to be right.It's a compliment Fred, really. :)
*calvin,We just got through with a law suit against a customer who didn't pay. We won the judgement and are in the proccess of collecting now.I had to hire an expert witness to verify that the work was finished and up to industry standards. I think it helped our side.He charged us $75.00 an hour for his time to view the property and sit in the court house waiting to be called to the stand. Good work if you can get it, and well worth the cost to me.Just answer the questions directly. Don't ramble on about things they haven't asked you about and tell the truth. That's all there is to it. It's not that bad.Ed. Williams
*So who sent andrew that twelve pack?I know of an industry magazine that could use a shot in the arm with a regular "Legaleeze" column. Maybe andrew knows of someone with a legal background, some construction experience, relates to their day to day concerns and one who has consorted with various construction types enough to get some good, relevant subject matter for a regular column?[g]I subscribe to a full host of my particular industries' trade rags. Funny how regardless of how flashy the cover subject is, I always prioritize my reading order according to my favourite columnists and their topics. Take for instance, Fine Homebuilding. I go for the column "Great Moments in Building History" even before I thrash thru the rest of the magazine. I think my priorities would shift if they had a regular column that dealt with the general legal issues that all in the construction industry could relate to.....and often ignore until it affects us where we live.Only a suggestion. I wouldn't want to suggest a particular individual. He might not appreciate the fact that everytime a legal subject comes up in the forumn, his name is referenced.[G]Jeff
*Why are there so many threads on law on this forum? Perhaps the sysop should start another sub-forum on legal issues; it could be called "The Docket".
*I think somebody else suggested a column for the magazine with legal issues as its focus.I had actually been thinking for some time that it would be great to see a regular column on business aspects of our industry.I would imagine that legal and business aspects could easily be combined.How many discussions have we been in here about effective advertising,whats the best business entity,negotiating credit,insurance,liability,customer service,handling disgruntled customers,recognizing in advance troublemaking customers and tons of ethical questions?Since most of us had a lot of experience in our own trades but relatively little business training I think this could be quite usefull.It would certainly inform a wider audience than those just looking for the best way to clean a paintbrush.( and though paintbrush cleaning might be usefull info indeed, I gotta believe it has rather limited appeal.Just my opinion,and I have been wrong plenty of times before.....Stephen
*I duly note that JLC has a column entitled "Legal Advisor" that addresses these sorts of topics. I've read a number of the columns from the CD-ROM -- anyone out there have an opinion as to their readability and usefulness? I find it a bit too general (boring), but that may be necessary when addressing a national audience. Conceivably, a legal column could include "news flashes" of legal changes in specific states -- prompts to "consult your lawyer." I think an important point is not so much covering the issues as communicating them in a way that is appealing and effective. Many lawyers forget how to write like normal people.I should point out also that there is no substitute for having a good relationship with a competent lawyer in your jurisdiction. Unfortunately, tort and property law vary a lot from place to place. A few dollars spent on having someone review your contracts and business structure will give you piece of mind and potent insurance.I wonder how FHB conceives of itself these days? Breaktime drives it in the direction of the trades, while its addition of the kitchen/bath issue to the the "houses" special is clearly an appeal to the laity. Can it serve both audiences well?And take anything I say with a grain of salt! :) I choose my words carefully but true legal advice must be based on research and local experience, and tailored to the individual's situation. I.e., I'm not practicing law here.
*"I wonder how FHB conceives of itself these days?"I think the recent announcement that FHB has engaged Martha Stewart to author a column answers that question.
*Just kidding...
*YOU HAD BETTER BE!
*Could be "a good thing" Mongo.Have you ever wondered what Martha Stewart would be like wrestling in the sack?
*I doubt she would do anything so ... messy. But I've heard she's extremely controlling, could be interesting for the right companion. :)
*Whips and Chains???????Beat me...beat me Ms. Martha..........ahhhhhhh......[exhaling deeply.. give me keys sweetie, the cuffs are a little tite]Oh Martha, you make me feel so cheappp...Sooo good......That was great girl, how about a cigarette?Tomorrow nite?? channel 11 at 7, I'll be there, for shoore.
*Calvin;I've done a few stints as an expert witness in a completely different field from FHB, but here are a few general comments.An expert witness is special because, unlike ordinary witnesses who can only relate what they heard or saw directly, an expert can offer his opinion. He has a body of knowledge by way of education and experience that a layman would not have. However, even though you are hired by one side of the case, you are expected to give objective opinions that are not biased toward either side. Don't overemphasize points in favor of your side, and don't suppress points that are unfavorable. You are not technically an advocate for either side. You are expected to be impartial, even though the truth is that you are a hired gun.Follow your attorney's guidance about making and keeping notes. The other side may have a right to inspect all of your papers on the subject. If you draft a report then make changes for the final version, destroy the drafts. Otherwise you may be accused of changing you opinion to suit your client or some other nefarious thing like that.If you are testifying or being deposed, talk in complete sentences; think about how your words will look in writing. Speak slowly. You are explaining a complicated issue to a judge or a jury of laymen who may have difficulty understanding the terms. Maybe a model or a picture can explain a concept better than a thousand words. But don't over do it. This is not show and tell.If it's a jury trial, look and speak to the jury; if it's before a judge, speak to the judge.Listen to the question, answer only what is asked. Do not volunteer unnecessary detail. If you don't know, say you don't now or cannot remember. Don't guess.Watch out if the opposing attorney tries to summarize your testimony sucn as "In other words, Calvin, you're saying ...." don't let him put words in your mouth. If any part of what he says is not correct, say you cannont agree entirely with his characterization. That might give you a chance to state you opinion a second time, which will help to strengthen your presentation.Don't argue or become belligerent with the opposing attorney, and don't try to be clever or sarcastic. Chances are he is a whole lot smarter than you think he is, and he is the one on familiar ground. He may try to make you look like a fool or a liar, evasive, confused etc. Stay calm, he's just doing his job. When he asks a question, pause (but not loo long) then answer it directly. Don't look over to your attorney before answering; the jury will pick up on this and think you are expecting to get some kind of signalIf the question is vague or ambiguous, ask him to restate it.You may be asked to review depositions by experts for the other side. Be fair. Halp your attorney to understand the strengths and weakensses on your side and on the others'.Good luck.Jay
*A few other observations: type up your resume' and go over it with your Attorney. He will want to introduce you to the court and lay the foundation of why your testimony should be believed. Lay it all out and he can decide what he'll use .The other side will probably have their own Expert Witness and you should pay very close attention to their testimony. You MAY be the only one in the court who knows wether they're blowing smoke or not. Your notes slipped to your attorney will help him/her in their cross examination.If you are familiar with Contract law for your Profession, you may know some of the regulations that apply that your attorney is not aware of. A lot of attorneys take cases in Construction litigation that are not specialists.You may be asked your opinion as to wether something is a "Standard of the industry" or "common practise".Your credentials should include anything that lends credence to your statements, number of years in business, any special training you may have in construction, any associations you belong to, etc.Have fun, this is very interesting stuff once you get by the deadly boredom of waitig around in court.
*Calvin, I hope all this yabber hasn't scared you off. The only expert witness I know well has had favorable experiences. People tend not to believe it, but the legal system and its rules are actually founded on a lot of common sense. You just gotta know the ropes to do well.Enjoy it, dress appropriately, speak clearly and concisely (don't mumble! speak towards the mike if these is one), eye contact is great, take something to read during the boring wait (best not to read within sight of the judge, some will take offense), and report back how it went.
*Calvin, I hope all this yabber hasn't scared you off. The only expert witness I know well has had favorable experiences. People tend not to believe it, but the legal system and its rules are actually founded on a lot of common sense. You just gotta know the ropes to do well.Enjoy it, dress appropriately, speak clearly and concisely (don't mumble! speak towards the mike if these is one), eye contact is great, show respect to everyone while standing your ground, take something to read during the boring wait (best not to read within sight of the judge, some will take offense), and report back how it went. If you do well, word will get around and you'll get more work like this.
*i am continuing to thank everone for the information provided and the encouragement. this will definitely be something to write home about. i will keep checking the site for more tips and will report back. one thing i can inform you all about is the paper trail. i guess what is important to all of us contractors is a good record keeping and progress report of all work that we do......see-- dashboard. so remember ladies and gentlemen, keep up to date backup in your job files, both large and small. recpts, daily log, photos,etc. it may become important later on. perhaps several years. i don't think "i don't remember" will cut it in the courtroom. judicially yours, BC
*A couple more pointsIt always seems (especially in a jury trial) that the opposing attorney will ask how much you are being paid for your opinions. He has two objectives here (1) establishing that you are being paid for your opinion and (2) that you're being paid a heck of a lot more than the folks who couldn't get out of serving on the jury. Your attorney might suggest a response, but I've usually said that my company (not me) is being paid for my time (not for my opinion) at my normal rate of $x per hour, and I'm getting paid as much for my time here as I would be if I were working on any other project. In other words, I have nothing at stake here that would make me color my testimony.Something else you might check with your side's attorney is how to respond when the other attorney badgers you for simple yes or no answers. Generally I've been told that I should first answer the question yes or no, but then go on to explain (if necessary) where a simple yes or no would be insufficient. After all, you are being asked to tell the WHOLE truth. Example, "Calvin, it that the way you would normally frame this kind of structure?" "No, I usually do it another way, but this way is a good alternative that is perfectly acceptable in this application." Imagine how this would have gone over if you were cut off after "no." Still, keep it short. Maybe the attorney senses that the judge is getting restless, and you do yourself no good if you tend to ramble on.I agree with the others here. This can be an really interesting experience, and not too stressful if you know your stuff (after all, you're the expert). And it's pretty good money for no heavy lifting.Jay
*I've been reading this with a mix of amusement and fear. I'm a litigator, and it's my responsibility to prep my experts. If I found out that somebody came to a thread like this, I would blow a gasket. The last thing I want is for my witness to get advise from anyone but me. It's not only my job to prep, but I want to know that my witness isn't going to say something that some yahoo thought was a bright idea in response to a question where I've prepped him otherwise.Bottom line is let the lawyer do his job. If he doesn't, he got what he paid for. If he does, you'll do fine. Either way, you're the construction expert, not the legal expert, and no one, especially the lawyer, wants you to come into court with preconceived ideas of what to say or how to respond. At least not a competent lawyer.SHG
*Kind of like a juror who goes and does his own research? (Like that spellbinding scene in "12 Angry Men" when Jack Klugman declares that the defendant's switchblade is unique, stabbing it into the table. Peter Fonda whips out an identical one and does the same. Drama! Tension! Mistrial!)I'm pleased to learn SHG also runs on internal combustion ('gasket'). As I understand it, we're merely trying to settle Calvin's nerves. SHG is right, the lawyer doesn't want to hear "but i read it on Breaktime!" :) You're a builder, be proud!
*Mongo,glad you put in that you where kidding.I'm much to old for that kind of shock.Almost fell off the chair.
*Hey, doesn't Martha live in CT with Mongo?
*gentlemen, i am now calm and collected. thank you.I remember the nervousness i had when i wrote the first report for the first case. When they settled soon after i submitted it, i couldn't believe how easy that was. Ditto for the second one eventho it took a year. I guess when i saw the courtroom looming ahead on this one, i gulped. Being new to this forum and being impressed how informed most of the responses were to a miriad of topics, i figured i'd try it on this one. However, i now see SHG's point and intend to shut my yap. again, thank you all. BC
*Heck, we forgot about YOUR needs a long time ago! Good luck!
*Jeez, Calvin, I give you a lot of credit for trying to figure out how best to do things. I can't tell you how many experts me how great a witness they are until they get on the stand and start yammering, hummina hummina. I wish everybody took it as seriously as you. You're a credit. And you'll do terrific.SHG
*.................!
*I discovered this thread a day late to take a cheap shot at Martha Stewart. Sorry, but I can't resist.A couple years ago, a friend of mine found himself unemployed for about six months. During this time, he became somewhat of an expert on daytime TV. He confessed one evening that he had been watching Martha Stewart's TV show and, despite himself, he thought Martha was quite attractive ("hot" was his actual description). You can imagine the crap we gave him for admitting this weakness.When my friend finally landed a job, we threw a party for him. One of the highlights was the reading of this "Top 10" list. (Warning: If you don't know anything about Martha Stewart, this will be pretty lame): b Top 10 Reasons Martha Stewart is Hot!10. Lemon wedges in toilet bowl make urinating fun!9. You wake up to find all the underwear in your drawer is folded into swans.8. Three little words.....hot sticky buns!7. No pesky family members hanging around to louse up your "perfect" holidays.6. Doesn’t mind flogging the gardner for you.5. The paper bag you wear on your head during sex is tastefully decorated with milkpaint and glitter.4. Wide hips good for child bearing and pressing flowers. 3. Knows all sorts of creative uses for Saran Wrap.2. She puts the "weiner" in weinerschnitzel.1. Sex...it’s a good thing!
*A few other observations: type up your resume' and go over it with your Attorney. He will want to introduce you to the court and lay the foundation of why your testimony should be believed. Lay it all out and he can decide what he'll use .The other side will probably have their own Expert Witness and you should pay very close attention to their testimony. You MAY be the only one in the court who knows wether they're blowing smoke or not. Your notes slipped to your attorney will help him/her in their cross examination.If you are familiar with Contract law for your Profession, you may know some of the regulations that apply that your attorney is not aware of. A lot of attorneys take cases in Construction litigation that are not specialists.You may be asked your opinion as to wether something is a "Standard of the industry" or "common practise".Your credentials should include anything that lends credence to your statements, number of years in business, any special training you may have in construction, any associations you belong to, etc.Have fun, this is very interesting stuff once you get by the deadly boredom of waitig around in court.
*Calvin, I hope all this yabber hasn't scared you off. The only expert witness I know well has had favorable experiences. People tend not to believe it, but the legal system and its rules are actually founded on a lot of common sense. You just gotta know the ropes to do well.Enjoy it, dress appropriately, speak clearly and concisely (don't mumble! speak towards the mike if these is one), eye contact is great, take something to read during the boring wait (best not to read within sight of the judge, some will take offense), and report back how it went.
*Calvin, I hope all this yabber hasn't scared you off. The only expert witness I know well has had favorable experiences. People tend not to believe it, but the legal system and its rules are actually founded on a lot of common sense. You just gotta know the ropes to do well.Enjoy it, dress appropriately, speak clearly and concisely (don't mumble! speak towards the mike if these is one), eye contact is great, take something to read during the boring wait (best not to read within sight of the judge, some will take offense), and report back how it went. If you do well, word will get around and you'll get more work like this.