Author Archives: Melissa Dewey Brumback

Being deposed—not just for dictators! Depositions in the construction lawsuit (Law & Order: Hard Hat files Part 5)

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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. 

The Best (and Craziest) Green Home Design Ideas (guest post)

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Adobe houseFor today’s guest post, we have writer and handywoman from DIY Mother  Katie White, who is passionate about self-reliance and conservation. She takes pride in making her home a more sustainable and comfortable place for her husband and two kids. She lives in Dallas.  Take it away, Katie!

 

No denying it, Green is in, and with all the energy savings and earth saving potential, why not? We’re not talking about greenwashing here; these are some great, albeit a little hardcore, ideas for environmentally friendly home design. Here is the short list:

1. Evapotranspiration

Staying with the outdoors for a moment, let’s talk about Evapotranspiration; it’s the hot topic in the blogosphere… well really, it’s a cool topic. Evapotranspiration is really just a fancy word to explain what happens when a plant moves and releases water vapor. That movement actually cools the plant and the immediate surrounding area. Combine that with the shade that trees provide, and you can cool an area by an astounding 9 degrees Fahrenheit. So strategically surrounding your home with trees can significantly reduce your power consumption once summer rolls around.

2. Radiant heating (and cooling)

Radiant heating systems supply heat directly to the floor (via panels) of a home. The most popular and cost-effective version of these pump heated water through tubes in the floor. To maximize the effect of radiant heating, floors covered in ceramic tiles are best because they conduct heat well, and add thermal storage. With a heating system in the floor, and a cooling system in the ceiling, these designs maximize efficiency and keep homes comfortable at low cost. In most cases, radiant heating should be paired with a tankless gas water heater to avoid wasting heat on stored water in the tank.

3. Shag insulation

Interestingly, some homeowners are installing shag carpet to go green—not for the floors, since those are decked out with ceramic radiant heating panels—but to insulate fridges and furnaces. Heat loss from refrigerators causes about 8% of homeowners’ electrical bills, so this technique can save quite a lot of energy. To maximize this effect, insulation board is taped to the top and sides of the refrigerator (not the doors), then the whole fridge is coated with a luxurious layer of disco. A full fridge with clean coils reaps the most benefit from this insulating design.

4. Ditch the toilet

This is one of the wilder green ideas that is growing in popularity, at least on the internet. The idea here isn’t to completely remove toilets from houses (although older models are usually replaced with high-efficiency models), but to reduce how often they’re used. More and more people are advocating urinating outside, which doesn’t have to be totally like camping. Many people are building outdoor restroom areas, (they prefer not to call them “latrines”) and by doing so save up to 5 gallons of water every time they choose to go outdoors.

5. Adobe housing

Adobe building techniques are a great way to go green, and it’s pretty stylish too. Adobe is efficient because it has low environmental impact, and it has a high thermal mass… meaning it retains temperature pretty well. Until recently, adobe did have a downside—it was seriously vulnerable to moisture—but new methods involving adding small amounts of stabilizers make adobe much more resilient against water damage. It’s still not workable in very rainy climates, but adobe is a great way to keep cool and save energy in arid and semi-arid regions.

Your turn!  What crazy green design ideas have you seen? worked with? recommended?  Share in the comments below, or drop me an email.

Welcome, too, to the new subscribers who signed on this week.  If for some reason, you didn’t get your free white paper on the 7 Critical Mistakes that Engineers and Architects Make, drop me a note and we’ll set you up. 

 

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

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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)

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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. 

You Don’t Need to be Goliath to Get Sued for Professional Malpractice (infographic)

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Think most business lawsuits effect the “big guys”?  Not according to the folks at Bolt Insuarnce.  According to them,  57% of lawsuits effect companies making less than $1 million in revenue. Did you know that 1 in 3 small business owners are sued or threatened with a law suit?

SOME CURRENT SCARY FACTS:
  • $100 billion: How much small businesses spend on legal action in the U.S. annually
  • 25%: Number of harassment claims has risen since 2006
  • $404 Million: Price to settle discrimination related law suits each year
  • 104 Billion: Annual cost to settle tort liability

Check out the neat infographic below to learn Five Ways to Protect Your Firm. 

 

Is Your Small Business Courting Disaster?
Via: BOLT Insurance

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What about you, blog readers? Have YOU had the occasion to be threatened with a lawsuit?  Learn any good lessons to share?  If so, drop a note below.

Infograph: BOLT Insurance