Mine is better than yours! Battle of the experts in the construction lawsuit (Law & Order: Hard Hat files Part 6)

battling deerEventually, 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).

Depos are no picnics!

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.

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**  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?]

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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

Paperwork, and more paperwork–Discovery in the construction lawsuit (Law & Order: Hard Hat files Part 4)

lots of paperworkAs I mentioned at the start of this series, one of the reasons that I like watching Law & Order is that things happen fast, and there is always a smoking gun paper  to be found by the lawyers over a night of eating cold Chinese food.  Yes, well- about that.  In the construction world -not so much.

Depending on the size of the project, there may be massive amounts of paperwork involved.  Think about every email, of every employee who touched the project, from initial proposal through final punch list.  Add in the change order logs, pay applications (with backup), submittals, shop drawings, project correspondence, drawings, specifications, diaries, meeting minutes, daily reports, site inspections, etc—and you can begin to visualize the problems that the magnitude of documentation creates.  Naturally, in the age of electronic data, digital cameras, and cloud computers, the issue of quantity is even more magnified.

Now, let’s discuss the discovery process in a construction lawsuit—that is, what the other side can ask for, what you must give, and how the process works.  Then I’ll detail a few recommended practices to put your firm in the best position possible if and when it has to deal with the information overload of a construction lawsuit.

What is “discovery” in the legal world?

Discovery is the all-encompassing term for means and methods to get information necessary to prosecute or defend a lawsuit.  The main written discovery consists of interrogatories and requests for production of documents.  Interrogatories are written questions that you (with the help of your lawyer) must answer about the project.  Requests for production, on the other hand, are requests made for documents that may, or may not, be relevant or admissible.  Inevitably, in one form or another, your entire project files need will likely need to be produced to the other side.

Be aware: things that you may not consider part of your firm’s project files may still be demanded. 

  • Does anyone at your company keep an old-fashioned pocket calendar, filled with a mixture of both business items and personal information?  It can be demanded in the discovery process.
  • Does your company conduct internal post-mortem meetings to discuss ways to improve on future problems and what went wrong on this one?  Discoverable.
  • Does one of your employees have a personal relationship with an employee of the general contractor, such that they send good-natured barbs and sarcastic comments about the project or project personnel to one another?  Yep- you guessed it—discoverable.

Each and every document, paper, back of envelope note, or personal diary entry can be demanded.  Scary prospect, right?

What can you do to limit the embarrassment and lessen the pain?

To lessen the pain, be sure to adopt some best management project and personnel practices, including:

  • Consistent intake methods.  Every employee who brings in work should know to find, modify, and use the Firm’s contract and/or form proposals.  Educate both your employees and your clients on the importance of having good, written contracts and proposals, and procure them in a uniform and systematic way.  There should also be a follow up procedure in place, in case a signed contract or proposal is not obtained.  One suggestion I have made previously:  do not open a new client or matter number to bill against until the contract is in place.

 

  • Management of rogue employees.  Ideally, don’t let any employees only use their hard drive.  If you can’t achieve that level of cooperation, at least insist that documents be copied over to the Firm’s computer system on a regular basis, and at least weekly.

 

  • Decide on Firm-wide file management.  Everyone on your staff should be filing everything the same way, whether in paper records or in email folders.   As noted in my post on how to smartly handle project documents, all communications should be in one place, preferably in a chronological order.  Failing that, a master chronological file could be kept for future reference.  You also must decide whether and which emails need to be printed and/or saved, and institute a standard policy Firm-wide for those as well.

 

  • Create a Problem file(s).  If problems in certain areas arise, maintain a separate file and/or e-folder for all documents relating to that area.  Who knows, one of those may end up being the smoking gun that makes your case.

 

  • Use a separate Legal file, if necessary.  Related to the problem file, if you get any legal help or help from your insurance company, create a new “Legal” file for legal issues, communications, and the like.  Do NOT keep this file with the other project files.  Ideally, all legal files should be kept in a different location/drawer/desk/office to prevent inadvertent disclosure in a lawsuit.

 

And, the #1 Rule relating to document best practices?

 

  • Follow the Grandma/Newspaper rule.  That is, instruct your employees to be careful in what they say in any forum– website, newsgroup, email, etc.  Before sending off any questionable communications, each employee should ask himself:

How would my grandma feel if she read my message in the newspaper? 

If he feels comfortable that the message wouldn’t make Grandma hold her head in shame, then and only then should he press “send”.

 

While you don’t need to know all the details of how to answer discovery unless and until you’ve been sued, if you follow these document best practices, you will be far ahead of the curve should you have to defend yourself in court.

Questions, comments, observations?  Share in the comments below or shoot me an email. 

Next in our series:   Being deposed—not just for dictators! Depositions in the construction lawsuit

 Photo (c) Veronica Robbins via CC.

You have the right to an attorney (but one will not be appointed for your construction lawsuit) (Law & Order: Hard Hat files Part 3)

lawyerEvery criminal worth his salt knows that he has the right to an attorney.  What about in construction law?  Not so much.  You do have the *right* to an attorney; however, you do not get one for free.  Do you *need* an attorney?  Not necessarily.  Then again, I prefer not to pull my own bad teeth, but hire a professional to do it for me.  Maybe you prefer the string-tied-to-a-doorknob method.  Not me.

In some situations, actually, you *do* need an attorney.  Any natural person can represent himself in court, fool or not.  However, if your company or professional association is sued, a company employee cannot represent that company pro se. That is, unless you have a licensed attorney on staff, you must hire a lawyer to represent your company.

There are two general ways that attorneys can be retained to defend you in the construction lawsuit—either your insurance carrier can hire them, or you can.  This is one of many, many reasons to have errors & omissions insurance.

If you have E&O insurance and are sued for professional malpractice or negligence, then your attorney will be hired and paid for by the insurance company.  You simply report the claim to your agent, and the insurance company will tell you who it has hired to represent you.  Nice, yes?

If you do not have insurance, then you must hire your own attorney.  How do you figure out who to hire?  The simple answer, of course, is to simply hire me! (kidding).  You will want to do some due diligence – ask for referrals, find out what types of attorneys in your area handle construction disputes, and talk with some potential attorneys.  Important questions to consider include:

  • Experience in construction disputes.  You don’t want a personal injury attorney who “dabbles” in construction – you want someone who does a lot of it.  In some states, there may be special certifications of construction lawyers; however, in North Carolina there is not any such designation at this time.  But the attorney should make construction law a regular part of his/her practice.

 

  • Knowledge of the design professional’s role.  Some lawyers and law firms mostly represent subcontractors in lien claims.  Others represent owners & bankers.  Some focus on general contractors.  And yes, others (including yours truly) tend to represent design professionals.  All things being equal, it is helpful to have someone in your corner who understands your industry, your industry’s jargon, and your industry’s practices.

 

  • Defense mindset.  Often, if you have found someone who meets the first two criteria, you will have found someone that has a defense mindset.  However, this is not always the case.  Some lawyers and firms tend to consider themselves plaintiff’s law firms; others consider themselves defense law firms.  If you have been sued, you obviously want someone who is of the defense mindset.  You can usually tell who these lawyers are based on their affiliations—for example, they tend to be members of their state civil defense attorneys network (in NC, the NC Association of Defense Attorneys), or they are members of a national network such as the Defense Research Institute.  In contrast, a plaintiff’s attorney will more likely be a member of the Academy of Trial Lawyers, Advocates for Justice, or the like.

If you already have a lawyer who you feel confident in, and who is qualified, can you get your insurance company to pay for him/her to defend you?  Sometimes.   You usually have some say in who is retained to represent you—for example, the right to request new counsel if you don’t like “the buffoon” they hired on your behalf.

If you have a lawyer preference, you can ask (but not demand) that the insurance company retain your lawyer in the lawsuit against you.  Your lawyer may need to agree to certain compensation, reporting, and other rules to be considered by the insurance company.  After all, they will be footing the bill.

Sometimes, you may find that your preferred attorney is already on the “qualifying” or “panel” counsel list of the insurance company, which makes it easy, and much more likely, that the insurance company will grant your request.  Remember, though, Jack McCoy and Lennie Briscoe didn’t ask to get to work together, they were just assigned to do so.  So it may be with you.  Regardless of who is your lawyer, read (or re-read) this excellent article on how to be an effective construction client.

Regardless of who represents you and/or your company, keep in mind that your attorney is your attorney, regardless of who is paying.  Anything you say to your lawyer must be held in confidence, and your lawyer is there to represent your interests.  Be honest with your lawyer, respond to his/her communications promptly, and work together.  Construction lawsuits are usually messy, but at least there is no funeral to deal with!

Next week in the series: Paperwork, and more Paperwork….Discovery in the construction lawsuit. Be sure to bookmark the blog, or sign up for email or the RSS feed, because you won’t want to miss any blog posts.

Photo (c) Dawn Hudson

The police are at the door! Service of the construction lawsuit on your company (Law & Order: Hard Hat files Part 2)

sheriff carThe police?  Yes, that’s right.  If you are sued, at least in North Carolina, you may find Mr. Policeman (or Ms. Policewoman) at your door.  There are several ways that you may find out you or your company are being sued, but undoubtedly seeing the Sheriff at the door is the most nerve-racking.  Heck, we have Sheriffs in our law office occasionally to serve papers, and the sight never fails to startle me.  So be forewarned—the first you find out that there is a lawsuit may be when Johnny Law himself comes knocking.

While unnerving (as it is often meant to be by the party suing you), rest assured that all the Sheriff will be doing is identifying you and handing you papers showing you’ve been sued.  The Sheriff doesn’t actually have to hand you the papers personally- in fact, depending on if and how you are incorporated, he may be handing them to your spouse, another adult that resides in your house, your business partner, or an officer or manager of your professional association.  While the Sheriff is not supposed to leave papers with a mere employee, that can and does happen as well.

The Sheriff is not the only way you can be sued.  You can also get a certified mail package—you know, the type that requires you to go sign for it at the post office.  Or, you may get a Fed Ex package.  If you are being sued in federal court, or you know the lawsuit is coming, you may not get anything, as it may all come to your lawyer instead.

What should you do if you do get the lawsuit (called the Complaint)?  First, run, do not walk, to your insurance carrier and/or lawyer.  Do not pass go.  This should be the first thing you do.  If you don’t have a lawyer, but you have insurance, your agent should be able to help you report the claim, and a lawyer will be assigned to you by the insurance company.  If you have a lawyer, you can report to him/her, and ask the lawyer to make the claim on your behalf to your insurance company.

Remember, however, that you need to report it as soon as you can.  In state actions in North Carolina, you have 30 days from receipt to respond.  In federal actions, you have 20 days.  There are certain rules concerning weekends and governmental holidays that change these deadlines at times.  But the important thing to remember is that you must respond, timely, or you can end up with a judgment entered against you in default.  So, when you report the lawsuit, the first thing your agent or lawyer will want to know is the date you (or someone connected with you) first received the Complaint.

If you report the claim and do not hear back?  Follow up.  Never assume that an email went through or that the person you called isn’t on vacation or in the hospital.  Make sure that you speak with your agent and/or lawyer personally and that they know when you were served.

Questions? Comments?  Have you ever been sued?  Do you now know something you wish you knew then?  Drop me a line or comment below.

Next week in our series:  You have the right to an attorney! (but one will not be appointed for your construction lawsuit)

Photo (c) freefoto.com

 

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