Ask not for whom the bell tolls: it tolls for thee! The construction trial (Law & Order: Hard Hat files Part 9)
The time has come. You’ve been sued. Suffered through discovery. Talked about the project under oath til your throat turned raw. And responded to the umpteen million request from your lawyer. You’ve engaged experts, second-guessed your work, and looked at copies of legal documents that made your head spin. Now, at long last, you will have your day in court. Or will you?
When will your case be heard?
Your trial date is a moving target, at least in North Carolina. Depending upon the county or jurisdiction the lawsuit is filed in, you are probably looking at your case taking from 1 year (for a small homeowner lawsuit) to 2 or 3 years for very complex cases. This is one reason why court ordered mediation is required in all Superior Court cases in North Carolina. It is also why most construction lawsuits do settle– at some point– prior to trial. Some cases settle, literally, on the courthouse steps (or in the courthouse conference room). Others settle during trial itself. But if you find yourself settling at the last minute, you will have spent the time and money for trial preparation for naught. A somewhat bitter pill to swallow.
What is involved in trial preparation?
Expect to review many documents relating to the project all over again with your lawyer(s), even if you’ve previously discussed them. Expect to spend time with your expert(s) discussing your plans and design intent. Expect to have some mock testimony sessions with your lawyers and others on their team. Mostly, expect a lot of aggravation. Trial preparation takes time. A lot of time. While much will be done by your construction lawyer, you will need to be actively involved.
How does the trial work?
The trial itself is probably the closest to a Law & Order scene that you will experience. But don’t expect Jack McCoy (or Perry Mason) moments. Very little happens in a trial that is completely unexpected.
If the trial is a jury trial (and most are), your lawyers will question the potential jury pool to try to weed out folks that have predisposed themselves to one side of the case. The other side will do the same. The result, ideally, is a group of disinterested, neutral folks that will decide your case.
After jury selection, opening statements are given. These are speeches given by the lawyers to forecast the evidence that will be given to the jury.
The, the plaintiff (that is, the party suing you) will be told to call its first witness. The plaintiff will proceed to call witnesses to the stand to testify. The order that they are called in is up to their lawyers, and different lawyers have different strategies for deciding which witnesses they call first, middle, and last.
With each witness, the plaintiff’s counsel will ask open ended, non-leading direct examination questions. After that, your counsel will ask leading questions on cross examination aimed at poking holes in the other side’s case, and establishing your own case theory.
After the plaintiff has presented its case and rests (and following some procedural motions at that point), the roles are reversed, and your lawyer will conduct direct examination, while the plaintiff will cross examine witnesses.
There are often legal sidebars during a trial, where the lawyers approach the judge and whisper about legal matters. If extended debate on something is needed, the jury will be excused. While you will not be invited to the bar to talk during sidebars, your lawyer can tell you what was discussed and how it effects your case.
At the conclusion of all evidence, the jury is given a set of legal jury instructions, and the lawyers present their closing arguments as to why their position should prevail. Then, you wait. And wait. And wait, until the jury reaches a verdict. The jury foreperson will read the verdict into the record.
What happens after trial?
Depending on the trial results, one side may ask the judge to set aside the verdict (called a j.n.o.v.), which is rarely granted. Whoever has lost may decide to notice an appeal of the verdict. Appeals must be based on legal errors that the judge made during trial. An appeal can take years, and the end result can be the same (that is, the verdict is upheld), overturned (set aside), or remanded for a new trial. Yes, that’s right: you can be forced to re-try your case.
Is all lost, then, if you lose the jury verdict? No; definitely not. No one likes to spend time and money on appellate briefs. So, even though the case is over, the parties may *still* negotiate a settlement. Be aware, however, that you will have a judgment “on the books” against you if the jury found that way, and that can affect your credit ratings. However, the judgment will also be rendered “satisfied” if you settle (or pay it off), which generally helps re-establish your good credit rating.That’s it! You now know just enough about the construction trial process to be dangerous! I’ve obviously had to condense many details in this series, so if you have any questions or want me to expand on any area, drop me a note or comment in the comment section of the blog.
Previously on Law & Order: Hard Hat files [chunk-chunk], we discussed how to know when a lawsuit is coming, how you will be sued, why you should not be your own attorney, and why documentation is key. We’ve also discussed being deposed, hiring experts, and mediation. We’re coming to the top of the 9th now, discussing how to have your case decided by a judge. [Next up: the jury trial].
Your lawyer has told you that your case might be heard on legal issues alone, before a judge. Or he’s mentioned that he is filing a motion for “Summary Judgment”. What, exactly, does that mean? To understand summary judgment, it is first necessary to understand how a typical case is heard.
In a case that goes to a jury trial, it is in fact the jury, not the judge, who decides the case. The judge handles order in the courtroom, the admissibility of evidence or witnesses, and other legal issues. But at the end of the day, the factual issues (that is, was your plan defective? If so, what if any damages did that defect cause?) are decided entirely by the jury. Most of the time.
So what’s this thing called “summary judgment”?
Sometimes, there are no real factual issues in dispute. In that case, the judge can decide the matter on the legal issues alone. For example, if you are sued after the expiration of the statute of repose, and there is no debate about when you last performed professional services on the project, then your lawyer can bring a motion to have the judge decide the case in your favor purely on that legal issue.
Most construction cases, however, are not so clear cut factually. However, you can still have a judge decide a case on summary judgment if the disputed facts, taken in the light most favorable to the other side, still show that you should win.
What happens when you file for a summary judgment hearing?
Either side can file a paper called “Motion for Summary Judgment”. This is usually done during or after discovery, as factual issues are determined and the list of truly disputed items is narrowed. Both sides have an obligation to present evidence as to why/why not the judge should grant the motion. Evidence can include affidavits (including your own and that of your expert), discovery responses, deposition testimony, and documents produced in discovery.
How does the judge decide?
The judge is required to take the factual evidence in dispute, and assume that the non-moving party’s version is correct. For example, let’s say you are moving for summary judgment based on the statute of repose. You claim that you last performed work more than 6 years before the lawsuit was filed. If the other side has some evidence that work was done later than you claim, then that is a dispute of a material fact. The judge will have to assume that the other side’s date is correct, and deny the motion for summary judgment on those grounds.
If, however, the disputed facts are not material (that is, not crucial to the deciding law), then the judge does not need to even consider them. And no one can rely on bare assertions of fact (of the “nuh-uh” variety): they have to produce some evidence of their position.
How will we know if we won or lost?
This varies from judge to judge. In general, unless the case is clear cut, the judge will want to take the case “under advisement”. What that means is that the judge is going to review the presented materials, make a decision, and then call the lawyers to tell them how he/she has ruled on the motion.
What does it mean if we lose summary judgment?
If you are asking for summary judgment and lose (and in close calls, expect to lose as judges prefer that cases go to a jury), then the denial of your motion for summary judgment means that the show goes on. Discovery can continue, and the case will be prepared for trial.
Of course, just because mediation has impassed and summary judgment has failed does not mean there *will* be a trial. Many cases continue to be negotiated and settled “on the courthouse steps”. Literally sometimes.
If your case does not, next week’s entry on jury trials should be required reading.
Have a question about summary judgment or other court motions? Drop me a line or comment, below.
Can’t we all just get along? Mediation and settlement of the construction lawsuit (Law & Order: Hard Hat files Part 7)
Today, part 7 of our series on the Construction Lawsuit, Law & Order: Hard Hat files.
At some point during the lawsuit (usually, but not always, after expert reports are produced), your lawyer may tell you the case is going to mediation. In fact, in North Carolina, all Superior Court cases are ordered into mediation, though the timing is usually left to the lawyers.
What is mediation?
Quite simply, mediation is a process in which the parties, their insurance representatives, and their lawyers get together to discuss trying to settle the case. The process is usually fairly informal, fast, and, often effective.
How is mediation different from arbitration?
In arbitration, you present your case to a one or three person “panel” of arbitrators. Witnesses are sworn in, evidence is presented, and, ultimately, the arbitrator(s) decide who wins, who loses, and what amount of damages should be paid.
In mediation, however, there is no “decision maker,” and the only way your case will be resolved is if you agree to having it resolved. In other words, you have much more control over the outcome.
Technically, how does a mediation work?
Mediations are all unique, but in general, most start out with a “general session” in a large conference room in which all parties (lawyer, parties to the lawsuit, and insurance reps) are present. The mediator, usually another lawyer who is not involved in the case, will present opening remarks, explaining that he/she is not there to decide anything, the ground rules for the day, and how he handles confidential information.
Then, the mediator asks each lawyer to state his case. The party who brought the lawsuit always goes first, and they state how the project started, why they sued, and why they believe they are entitled to damages. This can range from a 5 minute speech from their lawyer to a full-blown 2 hour multi-media (read: powerpoint) presentation, including remarks from retained experts. I’ve seen both, and everything in between.
Following the plaintiff’s presentation, the other parties will be asked to state their case (i.e., their defense, and any counterclaims), and why they believe they will prevail at trial.
After all of the lawyers have had their say, the mediator will generally allow any parties to speak if they wish to. Discuss this with your lawyer ahead of time, but the default is to simply bite your tongue, keep your mouth shut, and wait until “private session” to have your say. No architect or engineer ever made things better by arguing during the opening general session.
What are these “private sessions” of mediation all about?
After the opening session, the mediator will divide the parties into different conference rooms. Sometimes, parties whose interests are closely aligned may be in the same room, at least for part of the day. For example, if an architect and his engineer are united in their defense, they may want to spend part of the private sessions together.
The mediator will then practice “shuttle diplomacy”. That is, the mediator will talk with each party privately, playing devil’s advocate, discussing case outcomes, and, ultimately, passing offers to settle back and forth among the parties.
How do the offers of settlement work?
The settlement offers are highly case-dependent, and can vary throughout the day depending on how the mediator likes to work and how much leeway the attorneys give him. Usually, he starts with the plaintiffs to find out what amount of money, short of the full amount claimed, they would accept to walk away from the lawsuit.
Then, the mediator talks with the defendants (and third party defendants) about how much money they would be willing to pay to be done with the risks and unknowns of a jury trial. Conditional, confidential, and other offers are sometimes employed. If they are, the mediator will discuss the process with you at that time.
Why should I pay money? My design was good and I haven’t done anything wrong!
At some point during the day, you will end up saying this. It will seem extremely unfair that you are being asked to pay (or have your insurer pay on your behalf) for someone else’s problem or mix-up. However, ultimately you will have to make a business decision about how much time and effort your Firm wants to spend on taking the case to a jury. If the case settles, you free up the time you would otherwise spend in depositions, meeting with your lawyer, talking to experts, and reviewing documents. Depending on the scope of the project and the lawsuit, this could be hundreds of man-hours. Further, at the end of the day, you end up risking bad publicity and an adverse judgment that will affect either your bottom line or your insurance premium.
Are you saying I have to settle?
No, absolutely not. Sometimes, the plaintiff has such a crazy demand, that you are better off taking the case to a jury. Other times, the evidence is so much in your favor that it doesn’t make sense to settle. Usually, however, the case is more nuanced, and so you need to discuss the evidence, and your chance of a successful verdict, with your lawyer on a case by case basis.
My case was “impassed” at mediation. What does this mean?
If the mediator concludes that the parties are too far apart to settle, at some point he will declare an impasse. If this happens, everyone shakes hands and goes home.
What happens next is that the lawyers may continue to talk over the next month or so to see if there is any chance at all for settlement, and at the same time begin or continue their preparations for a trial. Just because a case impasses at mediation, doesn’t mean it can’t or won’t settle.
Cases can settle right up and through trial, until the jury comes back with a verdict. Obviously, the sooner a case settles the better, as you will have spent less time and money on trial preparation. However, do not give up all hope of settlement simply because of a mediation impasse. (After all, Lennie Briscoe never gave up, did he?!).
Your turn. Have you been part of a mediation? Tell me about your experiences, good and bad. And, if you haven’t already, be sure to sign up for email updates of blog posts directly to your inbox. The sign-up box is on the top right hand side of the homepage.
Photo (c) cobrasoft.
Mine is better than yours! Battle of the experts in the construction lawsuit (Law & Order: Hard Hat files Part 6)
Eventually, most construction lawsuits of any size involve hiring experts to review the project. These experts then usually issue an opinion as to whether or not you, as the design professional, violated the professional standard of care for architects or engineers working on a similar project in a similar community.
If the case proceeds to trial, all sides will have their own expert(s), with rare exceptions. Thus, the “battle of the experts” begins. That is, a jury will have to listen to your expert, their expert, and the juror’s own common sense, and try to make out who is correct. As with most things, there are probably valid points made by all of the hired experts (that is, of all the reputable ones, at any rate). If a case gets to trial, you can be sure of it.
Hiring an expert to support your position can be a scary prospect. You will essentially be paying (or having your insurance carrier pay) to have a competitor look over all of your work with a fine-tooth comb and 20/20 hindsight, to see if he can concur that your design met the standard of care. Your attorney should work with you to get a good, solid professional peer retained as your expert; however, if you have any suggestions of who to use (or, who you do *not* wish to use), make those opinions known. It is important to hire someone who is impartial about the outcome of the case, but you will not be required to hire your worst enemy/competitor.
Another protection that is built into litigation, is whether or not the expert’s opinion will ever see the light of day. If the expert cannot support your position, he will be designated a “consulting expert” and his opinions will remain only between you, your lawyer, and the expert. Assuming the expert does support your position, he will be designated as a “testifying expert,” at which point the other side can look at his records and notes, read any written reports he generates, and take his deposition.
Hiring an expert doesn’t have to be an arduous process, but work with your lawyer to get someone you respect on your side of courtroom.
Questions? Comments? Share your experience with experts, or being an expert, in the comments section below. And don’t forget to sign up for the Construction Professional newsletter and my free white paper on 7 Critical Mistakes, on the right hand side of the homepage.
Photo (c) Sias van Schalkwyk
Being deposed—not just for dictators! Depositions in the construction lawsuit (Law & Order: Hard Hat files Part 5)
My husband always finds it amusing when I talk about going “to depose” somebody. He wants to know just exactly what sort of coup d’etat I am planning. Despite the awkward language, the deposition process is not supposed to feel like water boarding, although if you don’t know what to expect it can be more miserable than truly necessary.
Simply put, a deposition is a chance for the other side’s lawyer to make you answer a whole bunch of questions (some relevant, some seemingly irrelevant) under oath. That is, first you put your hand on the Bible and swear (or affirm) to tell the truth, the whole truth, and nothing but the truth. In reality, depositions serve a variety of purposes– they educate the lawyers about the facts of the case, they give a preview of how you would “present” to a jury (i.e., would a jury like and believe you?), and they can be used to position a case for certain later dispositive motions (that is, summary judgment– stay tuned for Part 8 of the series on that issue).
While no deposition is ever a picnic, knowledge is power! Remember these simple rules to make it through the day relatively unscathed:
- Ask for enough information & time with your lawyer to be prepared. You may think you know all the facts of your construction project, since you’ve lived it, but it is always recommended to take some time both to review key project documents and to discuss expectations (and possibly role-play) with your lawyer. Find out if your deposition will be video taped or not. Find out if you are supposed to bring (or not bring) any documents with you. Discuss how long the deposition will likely last, and then double or triple that time. (Lawyers are notoriously optimistic when it comes to time estimates!). Ask your lawyer how you should dress. Remember that part of the deposition is the other side “sizing you up,” so please, don’t show up dressed for a day at the beach or the club!
- Remember the cardinal rule of depositions: always tell the truth. Now, while you do not have to go out of your way to volunteer where you may be at fault, you do have an obligation to answer the questions posed. There are various ways to handle incomplete or unclear questions. Sometimes, while not required, it can help position a case for settlement if you go in depth to explain your reasoning, rationales, and the like. Other times, that may not be wise. Find out your lawyer’s preference and strategy ahead of time. Remember, though, an ideal deposition is boring, more boring, and then over. Never try to “win” your case in deposition– it can’t be done.
- Remember that the opposing lawyer is not your enemy, and not your friend. Do not let them get you angry or excited. Remember that even things discussed “off the record” can later be used to find out information “on the record”. From the moment you enter the building, remember that off-hand comments can sometimes sink your case. Don’t discuss your testimony in an elevator, a bathroom, or hallway, unless you are *sure* that no one from the other side is present.
- Don’t treat the deposition as a marathon. You will get tired. You will get frustrated. You will lose your patience and think that Shakespeare’s Dick the Butcher was right when he said the first thing they should do is to “kill all the lawyers.” ** Regardless, remember that you do get certain rights as a deponent. For one thing, if you need a break, you can take one (so long as there is no pending question that has been asked). If you need to take a stretch, you can. If you need some water, you can get it. Remember this power, and (responsibly) use it as necessary. Don’t let fatigue cause you to make important errors– take the breaks you need to give fresh, clear, and correct testimony.
A day in the park it is not; however, with these tips your experience “being deposed” may go just a tad bit smoother.
** Ironically, this often mis-understood quote, from Shakespeare’s King Henry VI, is actually a tribute to the importance of lawyers. Shakespeare’s quote was acknowledging that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers.” [Sorry-- did I mention I was an English major in undergrad?]
Have you experienced a deposition? What do you know now, that you wish you knew then? Share in the comments below, or drop me a line. Think of the good karma you will get for helping your fellow architects and engineers!
Photo modified from image (c) by Johnny Berg.