Last December I looked at work from a guy who said he just had his house finished by X Builders. They are known in our area as fire restoration pro’s. The have been at it a long time.
The house had caught fire and they fixed it. Frankly some of the detail work sucked. A corner of a window is directly on the surface of the roof. The window was simply installed 2 inches too low.
The tub surround was loose. Trim either missing or no run to the proper termination point. One wall was out of plumb by a good 1 1/2″ over 9 foot.
So I quoted it. Now X Builders is suing the home owner, I assume for final payment. The homeowner has subpoenaed me and 4 other contractors as defense witnesses. So, now what. Hate to take shots at a competitor but………….and there is always a butt, they deserve it. DanT
Replies
It's happened to me three times. Just answer the questions the best you can. They'll be twisted into the "do you still beat your wife" format. When that happens, I've tried to twist my answers to that format.
The correct thing for the homeowner to do was to hire you as a proffesional witness, which I have also been a number of times. When they subpoena me I'm not near as sympathetic to their cause. You're probably gonna have to sit ouside the courtroom for hours to testify for 15-20 mins or you may not even get called after sitting there all day.
Just remember that you're under oath. Good luck.
http://grantlogan.net/
I was born in a crossfire hurricane..........shooby dooby do
Good advice and I appreciate it . And you are right, wasting my time will not be conducive to my good humor. I am not a good sitter. Thanks again. DanT
I wasn't a witness but when called to jury duty once, I caught a case where someone was involved in a minor collision and was sueing for whiplash, pain and suffering and (probably) loss of pet's affection....
I was in the "pool" where lawyers ("criminal lawyers" .... how redundant!) were picking a jury. One question the lawyers asked the pool was "would you be able to be fair even if you knew the plaintiff had filed suits like this before" ???????
WHAT!!!!!!?????? I sat in the jury pool, crossed my arms across my chest a put my best subway face on. (I'm YOUR WORST NIGHTMARE look!)
Didn't get called...... wonder why?
I got called for the panel on civil case.They sent us up to the court room, but had to wait out in the hall for about an hour.They they released us. Said that the lawyers saw the group that they had and figured that we were crasy enough to find both parties "guilty" so they settled <LOL>.
.
A-holes. Hey every group has to have one. And I have been elected to be the one. I should make that my tagline.
I was called into court years ago for similar circumstances.
I answered the questions honestly and openly; I have no idea what the end outcome was.
A few years later, I went to look at a job. The HO asked me if I had testified at a trial a few years earlier. It turns out she was one of the jurors. She said she was impressed on how I handled myself under questioning. I told her all I did was tell the truth, and that I had nothing to gain OR lose at that trial.
I did get the job. A small bath remodel, if I remember right.
so what you are sayin is Dan should poass out business cards to the jury pool?
bring some for the witnesses?
seems a bit much to me
(G)
Nah.
Just wear a company shirt.
<G>
Good ideas all. Don't expect good to come of it. Wear a company shirt. Be nice to the female jurors. Hand out cards. Got it! :-) DanT
I've gone through this a several times. There is a lot of sitting involved. And sometimes there is a settlement after a lot of sitting, and you never get to testify.Sometimes you get called in for depositions before the trial ever gets scheduled.But if you do finally get to sit in the witness chair, it's a bit nerve wracking during the build-up, but kind of fun once you get to testify. Remember, when you're in the chair you are the expert (of the subject matter that is). At one trial the opposing council was aggressive and tried to trip me up, but he was so ignorant of standard building practices, that it was comical. He looked bad to the jury and the judge, and his aggressiveness backfired on him.It may seem a big waste of time to you, but I think you will find the whole process pretty interesting and a great learning experience.John Svenson, builder, remodeler, NE Ohio
Edited 9/18/2007 10:02 pm ET by Svenny
No good will come this. Just get in, tell the truth, keep a low profile, and get out. Everybody here is angry, all sides to the story have some small degree of legitimacy.
Just try not to make enemies and get back to the work you like to do. If you can somehow get out of it all the better.
Sorry for you that you're getting sucked into this, no matter how lousy a job the guy did and how richly he deserves to go unpaid. Too bad they didn't have an arbitration clause.
m
------------------
"You cannot work hard enough to make up for a sloppy estimate."
I disagree with those who say that no good can come of this. Justice is good. The job of the courts is to impartially settle differences between citizens. When they do that, it is good.
Your part is to answer the questions clearly and honestly. Don't feel that you are biasing the jury by your answers. The court will hear witnesses and evidence on both sides of the case, and the jurors will decide what a fair outcome will be. You are not being asked to settle the case (which you couldn't anyway since you won't have all the facts). Just say what you know and what your professional opinion is regarding the matters they question you about. Enjoy it.
I have to agree about some good coming out of it.
We have actually solicited work from attornies in our area to hire us as expert witnesses. An engineer friend of mine spends more of his time in court than on a job site and his business success shows it.
Most of the time the work IS shoddy or it was an unlicensed guy that took the homeowners for a ride and those guys deserve to be in trouble and getting paid for our time is quite nice.
I am not a huge litigation person but sometimes its a necessay part of our world.
As other posters have said, just go and tell the truth. I know it's a pain and takes time, but it is the good and honest people who will testify and serve on juries that make our system of justice work, and faith in that system by the people keeps our society (somewhat) civil. I think you will find it a rewarding experience overall, at least I hope so. When there is no system of justice, it opens the door to the Stalins, Hitlers and Sadams.
This is a little off topic, but if X Builders is from Marion, the owner came into my wifes insurance office in Richwood a couple of days after one of her clients houses burned. He said that a specific claims adjuster had sent him there to get the clients cell phone number and address where she was staying to begin work on the house. The interesting thing was the house had already been declared a complete loss and the check had been cut for demolition. She politely sent him on his way, and called the claims adjuster to let him know that this gentleman was name dropping among other things. I met the gentlemen while he was at the office, and he would fit in real well with the "are you still beating your wife" types. He also asked for a stack of business cards before left, which he didn't get.
Good Luck
Interesting. Thanks for the info. DanT
Somebody's bein' cheap. Grant has it right: "The correct thing for the homeowner to do was to hire you as a proffesional [expert] witness"
As a subpoenaed witness, you can properly be asked factual questions concerning things about which you have first hand-knowledge, e.g., "when you saw the window, was it installed directly on the surface of the roof?" Answer: "Yes." No problem.
If the next question question is -- "And is it proper or acceptable building practice to install a window directly on the surface of the roof?", the builder's lawyer should immediately jump up and object because you haven't been qualified as an expert witness. This question requires the witness to have knowledge, experience or skill beyond that of the ordinary person. Objection sustained. Next witness.
To be qualified as an expert witness, you have to first answer questions that establish that you have knowledge and experience over and above the ordinary individual in a particular area. Once it is established that you are "expert", you can give your opinion or assessment in areas of your expertise. However, you can't be forced to give expert testimony without being paid. Simply refuse to answer any such question. I've never run into any judge who would direct you to answer such a question once you have refused to do so. (Of course, there are a lot of judges I haven't met. Obvioulsy, if you want to avoid a contempt citation, follow the instructions of the judge.)
If you are forced to respond, just answer any question requiring an assessment of the builder's work as follows: "I would really need to know more to accurately answer that question. I would need to personally examine the window more closely to fully understand how it was installed to determine if it was done improperly. Without doing further investigation, I can't offer an opinion on whether or not the work was properly done."
I suggest you write the homeowner a letter and inform him/her that you will show up since you were subpoenaed, but you will NOT provide expert testimony unless you are compensated for same. Pick a price -- you can charge anything you wish. I once hired an expert witness who charged $1,000 an hour. (And he's raised his prices since then -- a lot -- and he still gets too many job offers to accept them all!)
If you really don't want to sit around all day and waste your time, there's a good chance that you could have the subpoena quashed, since you don't really have any factual testimony that would advance the case and the homeowner is trying to get away with presenting improper expert testimony. But, to do that, you'd have to hire your own lawyer. Still, just a letter from a lawyer to the homeowner's lawyer may be all it takes to get you off the hook.
That, or call them up and tell them you are glad you were subpoenaed, since you've been looking for just such an opportunity to let the world know about the outstanding quality of the builder's work. In fact, you are even thinking about contacting the builder himself to see if he would also like you to testify, since you see it as your civic duty to set the record straight! ;-)
Mike Hennessy
Pittsburgh, PA
Mike , DanT , All ,
Mike , great information you have given.
Many years ago about the largest cabinet shop in our area was having a hard time getting paid on a huge job . The home owner refused to pay the full price of additional work added to the original contract without any signatures or paper work, they were claiming shoddy and incomplete work .
I was hired as an expert witness to go to the job and inspect all the work in question. I found it interesting they would call me the same guy that shop would bad mouth on occasion to potential clients that were talking to me as well . What he told them was my shop was smaller then his and I had less machinery and most of it was not as big as his , he never said anything about my work. All true .
I was asked to write up a paper on my findings . Much to my surprise the job was beautiful and the only incomplete areas existed only because the shop was not allowed on site to finish the job .
The attorney interviewed me and asked a few questions , ultimately even though the shop did not use an add order , it was still determined that the first 250 lineal feet of like cabinet work's price would also be a good footage price and value for the additional footage added . Judgement for the cabinet shop.
BTW this the largest shop in our area has since gone out of business
regards dusty
If you are asked questions of fact (what did you see? what color was the stop light?) you can be compelled to answer under power of the subpoena.
If you are asked your opinion, (Is this work of acceptable quality?) you may refuse to answer. You have a property right in your opinion.
Contact the lawyer who subpoened you. If (s)he wants your opinion, then let him pay what it is worth. If (s)he wants facts, you are stuck.
It is amaturish of a lawyer to subpoena a witness then expect an opinion. One doubts a lawyer would try this with a physician. No reason a carpenter should be treated differently.
anwalt
Contact the lawyer who subpoened you. If (s)he wants your opinion, then let him pay what it is worth. If (s)he wants facts, you are stuck.
It is amaturish of a lawyer to subpoena a witness then expect an opinion. One doubts a lawyer would try this with a physician. No reason a carpenter should be treated differently.
Excellent advice. The Rules of some jurisdictions (e.g. federal court) provide that a subpoena is generally subject to being quashed when it seeks testimony from an unretained expert. I can't imagine any judge requiring expert testimony from an uncompensated expert. Such a witness can be asked, "what did you see?" But not "did it comply with the building code?"
In addition, a competent lawyer doesn't want to aggravate a witness. I always speak to someone I subpoena to trial to explain the process and to arrange, to the extent possible, a schedule that is least disruptive to the witness. For example, I'll arrange for him to be on 2 hour cell phone notice. Most lawyers are similarly accommodating.
Edited 9/19/2007 10:16 am ET by smslaw
"So I quoted it. "from the OPtestify as to his quote and why he quoted what he did?
bobl Volo, non valeo
Baloney detecter WFR
"But when you're a kibbutzer and have no responsibility to decide the facts and apply the law, you can reach any conclusion you want because it doesn't matter." SHG
Thanks for the info. I called the attourney and he said he wanted the facts. I told him I was unhappy about wasting my time on a job I didn't do and can't remember as I have looked at over 200 jobs since. He said he understood that but he needed my testimony. He then said "OK?". I said no, I don't want to come to court and waste my time.
He replied "no one wants to go to court including me". I said "but you get paid for it, people like us who are self employed lose a days work and we lose money". He said that was true. Guess I go to court. DanT
If you don't wish to go to court, I'd call the attorney and explain to him you do not remember the facts, you do not remember the job well enough to comment and under oath you will be forced to tell the truth, which is the above. So really putting me on the stand is going to be a waste of time.
For example, If you ask me, was the window installed correctly, I will say I do not remember the house or the installation well enough to comment.
If he still insists, then say it when you get on the stand, should make for a short time there.
DanT,
Then I would go. Be professional, be courteous but when the guy starts asking you questions, respond with alot of "I don't know" or "I can't recall". If he doesn't want to pay you, there is nothing wrong with saying those things as after all, its not illegal to admit you don't know something.
He (the attorney) then looks ill-prepared by bringing in someone who doesn't know anything and obviously cannot be recognized as an "expert witness".
From my own experience, your greatest concern now is this thing being stretched out into multiple court visits since it could happen. You want to make it known up front that you are of no value in this case so you are not called back yet another day(s) and waste even more time.
Just my two cents of course
Mike
Good point. I really don't remember all the details. I just remember what my notes to quote the work remind me of. And I told him that during our brief conversation. So I will go, tell the truth, and not be prepared (hate that) because I am not being paid too lol. DanT
I dont think you should even worry about what your gonna say cause the first thing the other lawyer is gonna ask you is if you bid the work and if it was in your interest for the work to look subpar, Then hes gonna tell the judge your an impartial witness.
danT Not being disrespectful cause i dont know all the facts, One fact is after30 years of being a carpenter i can pick apart or praise anyones work, this was not a new house, I have had people say bad stuff about me JUST to get a job on my nickel. Some guys love to go over and be the hero and tell people what they want to hear. After meeting with these people i think you should have known what they were up to to go after the contractor, And you were more then willing, Now your going to court for free for them, Sorry im not being a wiseguy, been there.
"After meeting with these people i think you should have known what they were up to to go after the contractor, And you were more then willing,"
Stupid statement.
"cause i dont know all the facts"
Smart statement. I won't bother debating the entire who said what since you are willing to form that type of opinion based on what little you read here. DanT
After meeting with these people i think you should have known what they were up to to go after the contractor, And you were more then willing,"Stupid statement....... Dan i dont think it was Stupit I always ask the people why im bidding, These things are a no win situation, Theres no job there plus your caught bad mouthing another contractor after the fact, Walls outta plumb in a old house ??? You were not there when he framed it against what was there , maybe it was 3 inches outta plumb and he made up what he could, I walk from those bids OR i talk to the other contractor, Thats whats smart
Seems like I remember a legal term for the position you are in. Unfortunatley I don't remember the exact term. Something along the lines of "reluctant witness or compelled witness". Anyway the witness ain't thrilled to be there and receives no benefit (and a benefit could be friendship).
Their lawyer is cheap.
Hope the people get what they paid for
"Up a creek without a paddle"?
"S--t out of luck"?I think those are legal terms. Maybe technical terms though.
Unfortunatley I don't remember the exact term. Something along the lines of "reluctant witness or compelled witness".
"hostile witness"?
Dan
I'm a certified public accountant, not an attorney, but I have been an "expert" witness and I have been a "fact" witness. You have already received good advice, but let me add a thought. Sometimes an attorney will require a "yes" or "no" answer to a carefully crafted question that both you and he/she know cannot be answered honestly with a simple "yes" or "no." Either answer will be misleading. By all means you can answer "yes" or "no" and be done with it. However, if you are uncomfortable that you are being forced to, essentially, lie, you can turn to the judge and and ask for help. "Your Honor, I do not believe that this question can be honestly answered with a simple 'yes' or 'no.'" The judge may tell you to just do your best and answer "yes" or "no," but at least you will know that you did not willing mislead the judge or jury. Also, opposing counsel might then ask a question that will give you the lattitude to answer the question appropriately.
Edited 9/19/2007 4:02 pm ET by Chuck L
Edited 9/19/2007 4:43 pm ET by Chuck L
The interesting part of insurance work is they are usually only required to restore it to pre claim conditions. Unless you can specifically testify that the original window or anything else was installed properly and the new one isn't. All this is nothing more then hot air. Everyone wants their old busted stuff suddenly made shiney and new at the insurance companies expense... Rarely happens because you didn't read the fine print.
Testify all you want... run off at the mouth... chances are it will make little or no difference... and the contractor and his lawyers already know this.
"Testify all you want... run off at the mouth... chances are it will make little or no difference... and the contractor and his lawyers already know this."
Where did that come from. Did you miss the point I prefer not to testify, or be there at all? DanT
What happens if you just no-show? Do they issue a warrant for your arrest?
What happens if you just no-show? Do they issue a warrant for your arrest?
That's what could happen. It's called contempt of court.
I was subpeoned for job I bid on over three years ago.
I went in monday and spent 2 hours there.
The HO were sueing the sellers the real estate company and the home inspector.
I bid over 50,000 to tear out all the concrete (driveway and patios and install drains and swells in the new concrete.
The inspectors attorney drilled me about my experience and asked a bunch of questions about the property.He kept asking me if I was an expert in landscaping and water abatement. Which my reply was no everytime.
I was working on the house next door and had installed 12" drain pipe and a dry creekbed with more drains under it and a drain system around the patio and sump pumps with wells in low spots to move water to drains.
The reason they were suing is the house flooded the first month they moved in because they didn't know about the sump pump in the return duct work under the house and how to switch it on.
When I saw this setup I said that they should go after the seller for not disclosing this as there were three places on the contract that asked about water or other problems.
The opposing attorney kept trying to find a way out of having to tear out the old driveway and patio and asked why I couldnt use the yard and I just laughed and told him there is no yard on that side of the house just concrete.Then he started producing photos and said what about here I said "concrete".
If my deposition is used as evidence it will probably make the inspector look bad.But I really think the HO and real estate company should pay the blunt of the compensation.
ANDYSZ2WHY DO I HAVE TO EXPLAIN TO FRIENDS AND FAMILY THAT BEING A SOLE PROPRIETOR IS A REAL JOB?
REMODELER/PUNCHOUT SPECIALIST
I understand you don't want to testify. The question is why they picked you in the first place? I have been on many insurance jobs over my career. Seen plenty of repair work that the customer didn't like or situations that were not pretty. I either keep quite or pass along to the customer what they should expect. Oddly I have never been asked to appear in court.
luck of the draw on the pick...
Life is not a journey to the grave with the intention of arriving safely in a pretty and well preserved body, but rather to skid in broadside, thoroughly used up, totally worn out, and loudly proclaiming<!----><!----><!---->
WOW!!! What a Ride!Forget the primal scream, just ROAR!!!
Here was an interesting one I was on... Customer melted their siding. Couldn't be matched so the whole house need to be re-sided. There was massive amounts of rot and termite damage revealed when the house was stripped. No house wrap. Can you guess what was and wasn't covered by insurance? Was it wrong that the contractor had to re-side over the bugs and rot, making the house exactly like it was the day before the siding melted?
Guess you, and Bobbys have just had a most fortunate career. Or you are just much smarter than I to have avoided the situation all together. You two must be the superior thinkers in this area as I missed the boat all together and thought I had a shot at some work. Stupid me.
Their are 5 contractors listed on the supoena. Guess the idiots are just in this neck of the woods. DanT
sorry dan, I too have spent a few days in court having been tricked trying to hustle work or just seeing something while i was on a bid, I gave a roof bid one time and was called in on a lawsuit with the renter and the homeowner, Please be gracious enough to accept my humble apologies
Went to court today. Stood around with 4 other contractors till 2PM. Finally testified. They asked my name, business address etc. Then read my quote back to me line by line and asked if everything was correct.
Next asked some specific questions. I was able to answer about half. The attourney got frustrated and acted like I was snow balling him. I pointed out that in 2005 we serviced 202 clients which meant we probably quoted in the neighborhood of 500 quotes. Since it had been 8 months I didn't think I could remember all the details of this one job. He backed off.
Calling him did do some good. He made a point of getting me in first and letting me know he was doing so. They brought in everyone. The drain cleaner had gone out and capped 2 drains that were left open. Glued up 2 caps and stuck them on, charged $80, he was there too. Last to be called.
2 other guys were there because the quoted work and the last guy I never found out why he was involved. Probably a spy lol. A mindless boring day. But its over. Thanks again for all the advice! DanT
So, basically the owner got 4 contractors to work for him for free to sue a fifth contractor. If you were all there until 2 PM, that's most of a day each, plus whatever it took to look at his house in the first place.
Yep! I would say that is the jest of it all. Not sure how it all came out. But someone made money I hope lol. I sure didn't! DanT
Just to rattle his cage.. and for sh&8 and giggles......
Send him a bill for your days pay!!!!1
You know you won't get paid but just think of his reaction to it!!!"No doubt exists that all women are crazy; it's only a question of degree." - W.C. Fields
didja bring biz cards for everyone?
judge have any work for ya?
Funny you would say that. We did a repair job today at a local judges house. We all laughed this morning that is was the wrong judge or I could go to his house and not show up for court.
I did wear a company shirt but didn't do the business card thing. Did make a point of networking some with the other contractors and the drain guy is supposed to call so we can look at a shower problem he has. It would be nice to get something out of it lol. DanT
It's too bad when people try to get out of jury duty or don't want to testify in court, because a huge part of our freedoms as Americans is our (relatively) impartial court system. I would hate to get stuck in some country where you could really get in trouble if you got caught in the wrong place at the wrong time. I know that can happen here too but at least an honest effort is made to arrive at the truth.
But, I thought subpoenaes were for things likewitnesses to car accidents or family members who don't want to testify. It really sounds like they're screwing you over, trying to use you as an expert witness without compensation. It's not like you were at the scene of a crime or anything. I'd feel no remorse at doing anything you can to get out of this. Any of the ideas suggested sound good.
DanT,
I was involved in a case and sat through a couple of depositions. My sister is an attorney and gave me the following advice.
After listening carefully to each question, take a long moment before answering each one. It gives you a chance to consider your answer and lets you somewhat control the pace of questioning.
Keep your answers as short and succinct as possible. The best possible answers are "yes" or "no". A close second answer is "I do not know."
If they ask a question that is leading or misleading the best answer is simply "I do not understand the question. Could you please repeat it." If they ask the question the same way, repeat your answer but change the second part to "Could you please rephrase the question."
If your answer to a question would be speculation then say so. Any time you are not quite sure of the answer; if it is a "definite maybe"; that should be a key reminder that your answer may be speculation. Simply stating "I would have to speculate" pretty much quashes the question.
These things are not always easy to do. I am an engineer and like to explain things thoroughly. It took a great deal of restraint to follow this advise.
I hope this helps.
Thanks for the advice. Sounds like good stuff. DanT